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Youens v. State3/18/1999
A jury convicted appellant of driving while intoxicated, and the trial court sentenced him to 90-days imprisonment, suspended for 180-days community supervision, and a $1,000 fine. We address whether the trial court erred: (1) by admitting the arresting officer's testimony concerning appellant's performance on the horizontal gaze nystagmus field sobriety test (HGN) test as quantitative evidence of intoxication; (2) by admitting evidence of sobriety testing because it elicited testimonial acts prior to appellant's receiving his Miranda warning; and (3) by denying appellant's motion for instructed verdict contesting sufficiency of the evidence proving appellant was operating the vehicle. We affirm.
Facts
On December 14, 1994, appellant was involved in a minor traffic accident on Interstate Highway 10, in Colorado County. Department of Public Safety Trooper Jeff Pickett was dispatched to the scene where he observed appellant seated on the driver's side of a pickup truck, with the truck's engine running. As Trooper Pickett approached appellant's truck, appellant got out.
Trooper Pickett asked appellant to describe how the accident occurred. In a low, mumbled voice, appellant explained the accident, admitting that he had been driving. Trooper Pickett smelled alcohol on appellant's breath. When Trooper Pickett asked appellant for his driver's license and proof of insurance, appellant "fumbled" with his wallet. Based upon these observations, Trooper Pickett became suspicious of appellant's sobriety, but not absolutely sure of his intoxication. Therefore, Trooper Pickett administered three field sobriety tests to appellant. These included the HGN test, the finger-counting test, and the hand-clapping test. Appellant failed all three tests.
Admissibility of Sobriety Test Evidence
Appellant contends in his first and second points of error that the trial court erred by admitting evidence gathered from field-sobriety tests performed on appellant. The standard for reviewing a trial court's evidentiary rulings is de novo review of legal issues with deference to the trial court's resolution of fact issues. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
A. HGN Test
Appellant argues in his first point of error that the trial court erred by admitting quantitative evidence of appellant's intoxication based upon Trooper Pickett's interpretation of the HGN test he administered to appellant. Appellant contends the trial court should have excluded Trooper Picket's testimony that, if appellant had been given an intoxilizer test at the time of the offense, his alcohol concentration "would have been at least a .10[%]."
To preserve this error for review, appellant relies on a running trial objection renewing all the objections he had made before, during a voir dire examination of the police witness outside the presence of the jury. While appellant has not pointed to that portion of the 43-page voir dire examination containing an objection that comports to his point of error on appeal, the portion we have been able to find that is most nearly comporting is:
Secondly, I would object to the horizontal gaze nystagmus evidence on the basis that this witness [Officer Pickett] is not qualified to interpret the results of the test.
The best analogy that I can give is the intoxilizer. A person can be trained how to use the machine. He can be trained to read the results; but when the State proves up an intoxilizer test, they have to bring a chemist or toxicologist in to say what those results mean -- that that number on that machine equals intoxication.
Here, I don't believe the Sta
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