PD-1261-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/26/2015 3:49:00 PM Accepted 10/27/2015 4:48:47 PM ABEL ACOSTA No. ____________________ CLERK
In The
Court of Criminal Appeals
Of The State of Texas
Austin, Texas _________________________________________
MARCUS LOUIS JAMES, Petitioner
vs.
THE STATE OF TEXAS _________________________________________
PETITION FOR DISCRETIONARY REVIEW _________________________________________
COMES NOW MARCUS LOUIS JAMES and petitions this Court to review the judgment
affirming his conviction for driving while intoxicated in Cause No. 09-14-00360-CR, in the
Ninth Court of Appeals, and in Cause No. 299,715 in the County Court at Law No. 3, Jefferson
County, Texas.
October 27, 2015 TABLE OF CONTENTS
TABLE OF CONTENTS..........................................................................................ii
INDEX OF AUTHORITIES....................................................................................iii
IDENTITIES OF PARTIES AND COUNSEL……………………………………iv
STATEMENT REGARDING ORAL ARGUMENT……………………………..iv
STATEMENT OF THE CASE…………………………………………….............2
STATEMENT OF PROCEDURAL HISTORY…………………………………..2
GROUNDS FOR REVIEW………………………………………………………..2
STATEMENT OF FACTS…………………………………………………………3
ARGUMENT AND AUTHORITIES……………………………………………...4
CONCLUSION.......................................................................................................10
PRAYER FOR RELIEF…………………………………………………………..10
CERTIFICATE OF COMPLIANCE…………………...........................................12
CERTIFICATE OF SERVICE................................................................................12
ii INDEX OF AUTHORITIES
Cases
Arizona v. Youngblood, 488 U.S. 51, 58, (1988)…………………..…………………...……4, 5, 7
Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994)………………………………..……..5
Hays v. State, unpublished opinion, No. 09-08-00302-CR, 2009…………………………………9
Kelly v. State, 824 S.W.2d 568, 573-74 (Tex. Crim. App. 1992)………………………………5, 6
Lisenba v. California, 314 U. S. 219, 236 (1941)…………………………………….....………..4
State v. Rudd, 255 S.W.3d 293 (Tex. App.-Waco 2008, pet. ref'd)………...………………8,9, 10
Thomas v. State, 841 S.W.2d 399, 402 n. 5 (Tex.Crim.App.1992)……………..…………...……5
iii IDENTITY OF PARTIES AND COUNSEL
1. Petitioner is Marcus Louis James.
2. Trial and Appellate Counsel for Petitioner is Ryan W. Gertz, 2630 Liberty, Beaumont, TX 77702.
3. Trial and Appellate counsel for the state was the Jefferson County District Attorney’s Office, 1001 Pearl St., Beaumont, TX 77701.
4. The Trial Court Judge was Hon. Langston Adams, County Court at Law No. 3, Jefferson County, Texas.
STATEMENT REGARDING ORAL ARGUMENT
James requests oral argument and respectfully submits that oral argument would aid the
Court in the disposition of the case as it presents novel questions for consideration.
iv No. ____________________
PETITION FOR DISCRETIONARY REVIEW _________________________________________
COMES NOW MARCUS LOUIS JAMES and petitions this Court to review the
judgment affirming his conviction for driving while intoxicated in Cause No. 09-14-
00360-CR, in the Ninth Court of Appeals, and in Cause No. 299,715 in the County Court
at Law No. 3, Jefferson County, Texas. For convenience, the parties will be referred to
as “James” and “the State.” The reporter’s record will be referred to as RR (Volume
number) (Page number) and the clerk’s record will be referred to as CR (Page number).
1 STATEMENT OF THE CASE
This Petition seeks redress of the affirmance of James’ conviction for driving
while intoxicated. On September 11, 2013, James was charged with the offense of
driving while intoxicated.1 On June 17, 2014, after James pled “not guilty,” a jury trial
commenced.2 On the next day, James was found guilty of D.W.I.3 The Judge sentenced
James to 180 days in jail, suspended over 18 months, a $2000 fine, and community
service.4 The Ninth Court of Appeals affirmed the conviction on August 26, 2015. The
opinion of the Court is attached as Appendix A.
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals rendered its opinion affirming the conviction on August 26,
2015. No motion for rehearing was filed.
GROUNDS FOR REVIEW
1. The Court of Appeals erred by failing to address James’ Youngblood and
Kelly arguments regarding the officer’s intentional act of performing the HGN test off-
camera in order to deprive James of the right to challenge the way in which the test was
administered.
2. The Ninth Court of Appeals’ opinion in this case conflicts with a case out
of the Waco Court of Appeals, State v. Rudd, 255 S.W.3d 293 (Tex. App. – Waco 2008,
pet. Ref’d).
1 CR 8. 2 CR 177 3 CR 26 4 RR 3, 30
2 STATEMENT OF FACTS
James was pulled over for speeding while driving in Port Arthur, Texas.
During the course of the traffic stop, Detective Jeremy Bearden began initiating
field sobriety testing. Ultimately, James was arrested for driving while
intoxicated.
Both Bearden and his partner, Officer Mesa, made the arrests at the scene.
They are, in essence, the DWI Task Force for the Port Arthur Police Department.
Bearden testified at trial, but did not testify that James had the smell of alcohol on
his breath or person, that he had red, blood-shot, and glassy eyes, or that he was
unsteady on his feet. The video clearly reveals that James was not unsteady on his
feet.
Instead, Bearden’s testimony relied entirely on his administration of the
field sobriety tests to conclude that James was intoxicated.5 Bearden testified that
James exhibited six out of six clues on the HGN test. 6 He further testified that
James exhibited five out of eight clues on the walk and turn, but he employed
improper definitions under the Manual for arriving at that conclusion.7 Finally, he
testified that James exhibited one out of four clues on the one leg stand – a passing
score – yet the video plainly shows the one clue noted was not accurate. 8
Nonetheless, James was arrested.
5 RR 2, 93. 6 RR 2, 81. 7 RR 2, 130, 139. 8 RR 2, 130. 3 Most importantly to this appeal, however, Bearden and his partner, Officer
Mesa, intentionally take each citizen off-camera to administer the HGN test and
bringing them back on camera to administer the other two field sobriety tests. No
rational explanation for this practice was provided.
ARGUMENT
The trial court should have excluded the HGN test from evidence. Officer
Bearden intentionally administered the HGN test off camera in an effort to avoid scrutiny
at trial. James respectfully requests this Court grant review and reverse the Court of
Appeal’s decision as the admission of the HGN testimony violates fundamental tenants of
due process under the circumstances in this case and the Court of Appeals glossed over
these constitutional deformities. Without the use of the HGN results, the evidence
presented at trial was insufficient to support a verdict of guilt beyond a reasonable doubt.
James performed well on the two field sobriety tests that administered on the video tape
and thus the jury necessarily placed disproportionate weight of the HGN test results
which were not subject to scrutiny.
REASON FOR REVIEW NUMBER 1: The Court of Appeals erred by failing to address James’ Youngblood and Kelly arguments regarding the officer’s intentional act of performing the HGN test off-camera in order to deprive James of the right to challenge the way in which the test was administered.
The fundamental fairness requirement of the due process clause imposes upon the
police an undifferentiated and absolute duty to retain and to preserve all evidence that
might be of conceivable evidentiary significance in a particular prosecution. 9 In this
9 See Arizona v. Youngblood, 488 U.S. 51, 58, (1988) (citing Lisenba v. California, 314 U. S. 219, 236 (1941)). 4 case, the Court of Appeals glossed over James’ constitutional due process arguments
under Youngblood by essentially stating that Detective Bearden testified that he is an
expert and that he conducted the HGN test correctly, and that there was no evidence
introduced to indicate that Bearden acted intentionally or in bad faith. 10 Moreover, the
Court of Appeals conflated the due process defects with mere evidentiary complaints.
A. Arizona v. Youngblood
In Youngblood, the U.S. Supreme Court followed up the landmark decision of
Brady v. Maryland, to evaluate cases where the exculpatory value of unpreserved
evidence is not known or apparent on its face. A Youngblood claim involves a showing
that potentially exculpatory evidence was not preserved by the police and that the reason
for that suppression was the officer’s “bad faith.”11 The Supreme Court noted that the
question of bad faith turns on the State’s knowledge of the exculpatory value of the
evidence at the time it was not preserved.12 This Court has recognized the applicability
of Youngblood in Texas since 1992.13
B. The HGN Test
As this Court is aware, the HGN test is only reliable when administered properly.
In Emerson v. State, 14 this Court held that testimony concerning the HGN test is
scientific evidence and is subject to the requirements of Kelly v. State to be admissible
under Rule 702. 15 This Court held in Kelly that in order for evidence derived from
scientific theory to be considered reliable, "(a) the underlying scientific theory must be
10 See Appendix A, at 8. 11 Youngblood, 488 U.S. at 57. 12 Youngblood, 488 U.S. at 56 fn *. 13 Thomas v. State, 841 S.W.2d 399, 402 n. 5 (Tex.Crim.App.1992) 14 Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994) 15 Emerson, 880 S.W.2d at 764. 5 valid; (b) the technique applying the theory must be valid; and (c) the technique must
have been properly applied on the occasion in question."16
Even though nystagmus itself may not be seen on a vehicle mounted dash camera,
the Defense and the Court can determine whether an officer held the stimulus at the right
height and distance, performed the correct number of passes (minimum of fourteen), and
took the correct amount of time for each pass. But, only if the test is administered on
camera. If these things were not done correctly, then the test should be excluded.
C. Video Compilation Shows Consistent Practice of Performing HGN Off-Camera
The Court of Appeals also ignored overwhelming evidence in this case showing
that the practice of performing the HGN test of camera is both intentional and done in
bad faith. The video shows Bearden performing the HGN test on James by his driver
side door; and has a second Citizen Accused walk with him from the front of his vehicle,
where the camera is aimed, all the way around to his driver side door to administer the
HGN test.17 We can also see his partner do the same thing on two different occasions.18
Bearden testified at trial that the reason he did not perform the HGN test on camera was
due to the fact that there were people standing where he “would normally go to do the
HGN.”19 However, the video shows that the other officer and citizens naturally move out
of his way when he walks James to the front of his patrol car to perform the walk and
turn on camera.20 He also admits, though, that he knows the video does not record it
when he administers the test some where other than the front of his vehicle.21
16 Kelly v. State, 824 S.W.2d 568, 573-74 (Tex. Crim. App. 1992). 17 See Dash-Cam Video, State’s Exhibit 1, at 3:38; 15:50. 18 See Dash-Cam Video, State’s Exhibit 1, at 03:05; 16:50 19 RR 2, 95 20 See Dash-Cam Video, State’s Exhibit 1, at 5:30. 21 See e.g. RR 2, 108 (admission by Bearden that we could see the administration if he 6 Additionally, though, on a video compilation, created by James’ counsel and
submitted to the Court during the Motion for New Trial Hearing, Bearden and Mesa are
shown intentionally administering the HGN off camera in several other cases where these
two officers have done exactly the same thing. The video likewise showed a State
Trooper performing the HGN test at the wrong speed, the wrong angle, and the wrong
number of passes – thus demonstrating that video evidence subjects an officers
administration to appropriate scrutiny under the third prong of Kelly.22 The Court refused
to consider this evidence as it relates to their intentional and bad faith efforts to deprive
defendants of the ability to scrutinize how they administer the one test this Court
considers scientific.
During his testimony Bearden acknowledged, and this is crucial for Youngblood
analysis, that if he does the HGN on camera, that defense counsel can scrutinize his
administration of the test and determine whether or not it conforms with the manual.23
He further admitted that he has seen officers administer the test incorrectly and
acknowledged that, if the test were on camera, another expert could view and critique it.24
The Court of Appeals completely fails to acknowledge these troubling admissions by
Bearden as they relate to bad faith. As the U.S. Supreme Court noted in Youngblood, the
key to bad faith is whether the State is aware of the exculpatory nature of the evidence at
the time of suppression.25 Bearden’s responses indicate that he is clearly aware of the
potential exculpatory value of seeing the HGN administration, yet over and over again he
and his partner choose to administer it off camera.
performed in front of the vehicle where his camera points). 22 See video offered at hearing on motion for new trial. 23 RR 2, 113 24 RR 2, 114. 25 Youngblood, 488 U.S. at 56 fn *. 7 Without the testimony regarding the HGN test results, the evidence presented at
trial was insufficient to support a verdict of guilt beyond a reasonable doubt. The entirety
of the Court of Appeals analysis regarding Bearden’s testimony regarding field sobriety
tests – outside of the HGN test - is that James “exhibited clues on both the walk and turn
test and the one-leg-stand test.”26 The Court does not address the numerous problems
with Bearden’s testimony regarding the administration of the walk-and-turn or the one-
leg-stand test as outlined in James’ brief to the Court of Appeals. There was no evidence
presented that James had the smell of alcohol on his breath or person, no evidence that
his eyes were red and blood-shot, nor any evidence he was unsteady on his feet. Bearden
intentionally administered the test off-camera, then concluded that James had
demonstrated six out of six clues on the test. It was the only test where Bearden was
able to describe a conclusive “failure” by James and was also the only test whose
administration cannot be scrutinized by James’s counsel. The trial court’s decision to
admit the HGN test in this case becomes exceptionally more important and harmful given
the weakness of the other evidence presented.
REASON FOR REVIEW NUMBER 2: The Ninth Court of Appeals’ opinion in this case conflicts with an opinion of the Waco Court of Appeals, State v. Rudd, 255 S.W.3d 293 (Tex. App. – Waco 2008, pet. Ref’d).
In State v. Rudd,27 the Waco Court of Appeals upheld the exclusion of HGN
evidence because the trooper intentionally administered the HGN test out of the view of
the camera and yet made sure the walk and turn and one leg stand were videoed. That is
precisely the scenario in the present case. In fact, James would point out that Rudd and
26 See Appendix A, at 9. 27 State v. Rudd, 255 S.W.3d 293 (Tex. App.-Waco 2008, pet. ref'd). 8 this case are factually indistinguishable. In Rudd, there was no evidence of slurred
speech or the smell of alcohol testified to by the officer. As Bearden did here, the
Trooper in Rudd testified that he administered the HGN correctly in accordance with the
manual. Additionally, Rudd, like James, performed well – though not perfectly – on the
two FST’s performed on camera. There, the trial court found that the officer’s decision
to administer the HGN test off-camera and the other tests on-camera called into question
whether he administered the test properly under the third prong of Kelly. The Waco
appellate court endorsed that decision, and this Court declined to review it.
In the past the Ninth Court had distinguished Rudd in a case called Hays v. State,
where a TABC agent was permitted to testify about HGN performed without a video
because he did not have a video system in his vehicle.28 This case, on the other hand, is
much more akin to Rudd. The officer had video, could have administered on camera
safely, and the context clues of the video indicate that taking the citizen off camera was
intentional. While the procedural posture is different, this represents a serious
constitutional issue and given the conduct, James, like Rudd, was deprived of due process
by the officer hiding the ball on the only scientific test he can administer in the field.
In the present case the Beaumont Court of Appeals correctly points out that Rudd
involved a trial court granting the defendant’s motion to suppress the HGN test. 29
However, the Beaumont Court states that the trial court in Rudd simply determined that
the officer lacked credibility to and failed to properly perform the test. But the Rudd
opinion clearly states that the trial court “found his credibility to be lacking on this issue
28 Hays v. State, unpublished opinion, No. 09-08-00302-CR, 2009. 29 See Appendix A, at 8. 9 because of his failure to have Rudd perform the HGN test on video”30 and that the “State
failed to prove that Trooper Nolley properly administered the HGN test to Rudd.” 31
These distinctions are significant. The trial court in Rudd did not simply think that the
trooper was lying or that he did the test wrong. The Beaumont Court brushes off the
Rudd decision as a mere credibility and abuse-of-discretion case while ignoring its
underlying rationale based on Kelly. And while it is true that the present case and the
Rudd case are procedurally distinguishable, they are factually indistinguishable. The
conflicting opinions of these courts of appeals provide this Court with an opportunity to
address the serious constitutional and evidentiary issues raised by officers performing
certain tests on citizens “off-camera” to avoid scrutiny at trial of the accused.
CONCLUSION
This Court should grant James a new trial based on the fundamental flaws in this
case. The police officers making the arrest intentionally administered a key field sobriety
test off-camera to avoid scrutiny at trial. The trial court erred by admitting the results of
that test despite the concealment and allowed the jurors to hear testimony regarding the
only test that James allegedly failed outright. Additionally, this Court should remand for
a new trial because, absent the HGN testimony, there would have been little if any
evidence sufficient to warrant a conviction.
PRAYER FOR RELIEF
James asks the Court to grant review of this matter to address and correct the
errors of the Trial Court and the Court of Appeals. James specifically requests the Court,
30 Rudd, 255 S.W. 3d at 301. 31 Id. 10 upon review, to reverse this cause and render, as to the issue of insufficient evidence, or
remand the case to the trial court for a new trial.
Respectfully submitted,
/s/ Ryan W. Gertz _____________________ Ryan W. Gertz The Gertz Law Firm 2630 Liberty Beaumont, TX 77702 Tel: (409) 833-6400 Fax: (409) 833-6401 Texas Bar. No. 24048489
11 CERTIFICATE OF COMPLIANCE
In accordance with Rule 9.4(i)1, there are 2,590 words including endnotes and footnotes.
/s/ Ryan W. Gertz _________________________________ Ryan W. Gertz
CERTIFICATE OF SERVICE
This is to certify that on October 26, 2015, a true and correct copy of the above
and foregoing document was served on the Jefferson County District Attorney's Office,
1001 Pearl Street, 3rd Floor, Beaumont, Texas.
/s/ Ryan W. Gertz _________________________________ Ryan W. Gertz
12 APPENDIX
Item No. Description No. Pages
9th Court of Appeals Opinion. 1 10 In The
Court of Appeals Ninth District of Texas at Beaumont ________________
NO. 09-14-00360-CR ________________
MARCUS LOUIS JAMES, Appellant
V.
THE STATE OF TEXAS, Appellee ___________________________________________________________________
On Appeal from the County Court at Law No. 3 Jefferson County, Texas Trial Cause No. 299715 ___________________________________________________________________
MEMORANDUM OPINION
A jury convicted appellant Marcus Louis James of driving while intoxicated,
and the trial judge assessed punishment at a $2000 fine and one hundred eighty
days of confinement in the Jefferson County Jail, but suspended imposition of
sentence and placed James on probation for eighteen months. In two appellate
issues, James challenges the admission into evidence of the police officer’s
testimony concerning horizontal gaze nystagmus (HGN) testing of James and the
1 legal sufficiency of the evidence without that testimony. We affirm the trial court’s
judgment.
THE EVIDENCE
Detective Jeremy Bearden of the Port Arthur Police Department testified
that he is assigned to the traffic unit, which primarily involves dealing with
intoxicated drivers, and he is certified in standardized field sobriety tests. On
August 28, 2013, Bearden stopped a white Ford pickup truck driven by James.
Bearden explained that he was in the parking lot of a gas station when he saw the
white truck and three other vehicles pull up to a flashing red traffic light and heard
their engines revving. According to Bearden, the two vehicles in front stopped at
the flashing red light and then “took off, . . . kind of like they were racing each
other, keeping up with each other. The two vehicles in back went straight through
the red light. They didn’t stop and wait. They were obviously trying to keep up
with the two in the front.” Bearden got into his patrol car and began chasing the
vehicles, and he eventually caught up with them as they were pulling into a parking
lot and detained all four suspects.
Bearden testified that he began speaking with the four subjects, and two
other officers, Officers Meza and Dinger, arrived. Meza performed field sobriety
testing on two of the subjects, and Bearden performed standardized field sobriety
2 testing on the other two subjects. Bearden began his testing of James by
administering the HGN test, and he testified that James exhibited six out of six
possible clues. Bearden explained the three portions of the standardized HGN test:
(1) checking for smooth pursuit, which involves asking subjects to follow a light at
the end of a stylus with their eyes while keeping their heads still, and watching for
twitching of the eyes; (2) the maximum duration test, which involves bringing the
light all the way out, holding it for four to eight seconds, and having subjects focus
on it the entire time that the light is extended, again checking for twitching of the
eyes; and (3) “onset prior to 45 degrees[,]” which involves staying twelve inches
from subjects’ faces at a forty-five-degree angle, and watching for twitching of the
eyes. Bearden testified that each eye is checked twice on each individual test, so
there is one potential clue for each eye on each of the three HGN tests. According
to Bearden, James exhibited six clues.
Bearden then administered the walk and turn test to James. Bearden
explained that the walk and turn test involves having a subject walk along a
straight line, heel to toe, for nine steps, turn, and take nine steps back. Bearden
testified that he gave James the instructions for the test three times and
demonstrated the test twice. Bearden next administered the one-leg stand after
giving James instructions. Bearden explained that the one-leg stand involves
3 having a subject raise his foot about six inches off the ground with his hands by his
side, keeping both legs straight, and looking down at the foot and counting for
thirty seconds. Bearden testified that, “[o]n a one-leg stand you look for if they put
their foot down, sway, use their arms for balance, or if they hop trying to stand
up[,]” and he explained that these things are clues as to whether the person is
intoxicated. According to Bearden, each of the field sobriety tests led him to
conclude that James was intoxicated. The State then played a video recording of
Bearden’s encounter with James for the jury.
Bearden explained that the HGN test was not performed on camera because
Bearden had stopped four subjects, and another officer had two of the subjects
standing where he would normally have performed the HGN test on James, so
Bearden elected to simply perform HGN testing of James beside the truck where
James was already standing. Bearden testified that his training enables him to
identify whether a subject is intoxicated. According to Bearden, James refused to
submit to a breath test, and James admitted that he had consumed several shots and
two beers that night.
Bearden explained that there is no policy or practice about placing a subject
in front of the police vehicle to perform the HGN test. Bearden testified that he
does not pay attention to where he administers HGN testing, and HGN clues
4 cannot be seen with a camera, but he does insure that the walk and turn test and the
one-leg stand are on video because the clues are visible on video. According to
Bearden, James started the walk and turn test too early and failed to maintain his
position, both of which are clues. James also turned in the wrong direction, stopped
while he was walking, and used his arms for balance. With respect to the one-leg
stand test, Bearden explained that James swayed during the test, which is one of
the four possible clues. After concluding the field sobriety testing, Bearden
arrested James for driving while intoxicated. The State rested at the conclusion of
Bearden’s testimony. The jury found Bearden guilty, and the trial judge assessed
punishment.
ISSUES ONE AND TWO
In issue one, James challenges the admission into evidence 1 of the police
officer’s testimony concerning the HGN testing of James. In issue two, James
challenges the legal sufficiency of the evidence without the testimony regarding
the HGN testing. Specifically, James contends Bearden deliberately and in bad
faith conducted the HGN test in a location where it could not be captured on video,
1 James filed a pretrial motion requesting exclusion of testimony regarding the HGN test administration and results, alleging that (1) Bearden intentionally administered the test off camera to prevent counsel from determining whether the examination was properly administered; (2) without reliability evidence, the test cannot meet the requirements for admission of expert testimony; and (3) the testimony “is extremely prejudicial and yet has little probative value.” 5 and that the evidence is therefore unreliable because James’s counsel could not
review the manner in which Bearden administered the test. We address issues one
and two together.
In reviewing the legal sufficiency of the evidence, we review all the
evidence in the light most favorable to the verdict to determine whether any
rational fact finder could have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The fact finder is the ultimate authority
on the credibility of witnesses and the weight to be given their testimony.
Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full
deference to the fact finder’s responsibility to fairly resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains conflicting
inferences, we must presume that the fact finder resolved such facts in favor of the
verdict and defer to that resolution. Brooks v. State, 323 S.W.3d 893, 900 n.13
(Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). We also determine whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the
light most favorable to the verdict. Clayton, 235 S.W.3d at 778.
6 We review a trial court’s ruling admitting evidence for abuse of discretion,
and we must uphold the trial court’s ruling if it falls “within the zone of reasonable
disagreement.” Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); see
also Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The trial
court errs when its ruling admitting the evidence “is so clearly wrong as to lie
outside that zone within which reasonable persons might disagree.” McDonald v.
State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).
Rule 702 of the Texas Rules of Evidence states that a witness “who is
qualified as an expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue.” Tex. R. Evid. 702. The Texas Court of Criminal
Appeals has held that testimony concerning the HGN test is scientific evidence and
is therefore admissible under Rule 702 if it meets the requirements set forth in
Kelly v. State, 824 S.W.2d 568, 573-74 (Tex. Crim. App. 1992). Emerson v. State,
880 S.W.2d 759, 764 (Tex. Crim. App. 1994). As discussed above, James contends
the HGN testing evidence was inadmissible because the HGN test was conducted,
intentionally and in bad faith, in a location where it could not be captured on video,
thereby violating his due process rights.
7 The jury heard evidence that Bearden testify that he is assigned to the traffic
unit and is certified in conducting standardized field sobriety tests. Bearden
explained in detail the procedure for conducting the HGN, as well as the types of
clues a subject may exhibit during HGN testing, and he testified that he followed
the standardized procedures in his HGN testing of James. The jury also heard
Bearden explain why he did not perform the HGN testing on camera, and that there
is no policy or practice about placing a subject in front of the police vehicle to
perform the HGN testing. Bearden testified that HGN clues cannot be seen with a
camera. No evidence was introduced to indicate that Bearden acted intentionally or
in bad faith when deciding to administer the HGN test out of the camera’s view.
In support of his argument, James cites State v. Rudd, 255 S.W.3d 293 (Tex.
App.—Waco 2008, pet. ref’d). However, Rudd did not hold that the failure to
videotape the HGN test bars its admission into evidence. Id. at 301-02. Rather, the
Rudd court merely upheld the trial court’s order granting a motion to suppress
HGN testimony because the trial court had determined that the officer who
administered the HGN test lacked credibility and failed to properly perform the
test. Id. at 301. James cites no authorities holding that the lack of a video recording
renders evidence of HGN testing inadmissible, or that lack of a video recording
violates his right to due process, and we are aware of none. For all of these reasons,
8 the trial court did not abuse its discretion by admitting Bearden’s testimony
regarding the HGN testing into evidence. We overrule issue one.
We turn now to the legal sufficiency of the evidence. The State had the
burden to prove that Bearden was intoxicated while operating a motor vehicle in a
public place. See Tex. Penal Code Ann. § 49.04(a) (West Supp. 2014). The jury
heard evidence that Bearden stopped James and three other subjects who appeared
to be racing. Bearden testified that James exhibited six out of a possible six clues
on the HGN test , and he also exhibited clues on both the walk and turn test and the
one-leg stand. In addition, the jury heard testimony that James told Bearden he had
consumed several shots and two beers that evening, and that James refused to
submit to a breath test. The jury also viewed a video of James’s performance of the
walk and turn and one-leg stand tests. As we have previously explained, the trial
court did not err by admitting evidence of the HGN testing. Regardless of whether
or not the HGN evidence is considered, we conclude that a rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
See Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at 13; Penagraph, 623 S.W.2d
at 343. We overrule issue two and affirm the trial court’s judgment.
9 AFFIRMED.
________________________________ STEVE McKEITHEN Chief Justice
Submitted on July 27, 2015 Opinion Delivered August 26, 2015 Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.