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Youens v. State3/18/1999
te is going to produce anybody with a scientific background or medical background who can say, "If your eye starts jerking at `X' degrees instead of `Y' degrees, that means that you're intoxicated."
The officer can testify at what angle the Defendant's eye jerked, if it did, you know, the onset of nystagmus -- at what angle -- but he does not have the background and qualifications to testify as an expert as to what that means, if anything, so far as intoxication.
We read appellant's trial objection as complaining of any opinion by Officer Pickett regarding appellant's intoxication as a result of performing the HGN test. Appellant's objection does not distinguish between quantitative and qualitative opinions by the officer. This is crucial because Texas case law allows an officer to testify to the qualitative results of the HGN test, but not the quantitative results. See Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994). In other words, an officer trained in administering the HGN test may give his opinion that a suspect is under the influence of alcohol, but may not testify to that suspect's exact blood alcohol content. Id. Thus, appellant is correct that the officer should not have given his opinion about appellant's quantitative blood alcohol content based on the HGN test.
It is well settled, however, that when a trial objection is made to evidence, only parts of which are inadmissible, a defendant must identify the objectionable parts to preserve error for review. See Brown v. State, 692 S.W.2d 497, 501 (Tex. Crim. App. 1985). Therefore, appellant's running trial objection that the officer was not qualified to give any opinion about appellant's intoxication based on the HGN test was not specific enough to preserve error on appeal concerning his complaint that the officer's use of .10 improperly indicated the quantitative blood alcohol content results of the HGN test.
Accordingly, we overrule appellant's first point of error.
B. Finger-Counting and Hand-Clapping Tests
In appellant's second point of error, he contends that the trial court erred by admitting Trooper Pickett's testimony concerning the manner in which appellant performed two other field sobriety tests, the "finger-counting" and "hand-clapping" tests. Appellant argues his performance of these tests constituted testimonial acts done prior to receiving his Miranda warning, which rendered testimony concerning appellant's performance inadmissible.
Appellant bases his argument upon the United States Supreme Court's holding in Muniz v. Pennsylvania, 496 U.S. 582, 110 S. Ct. 2630 (1990), as followed in Texas by Vickers v. State, 878 S.W.2d 329 (Tex. App.-Fort Worth 1994, pet. ref'd) (holding that trial court erred by admitting a video showing suspect taking sobriety tests consisting of the recitation of the alphabet from "f" to "w" and counting backwards from 90 to 75). However, the Court of Criminal Appeals has declined to follow Vickers. That court has since held that a videotape showing a suspect counting and reciting the alphabet during the course of field sobriety tests is admissible. Gassaway v. State, 957 S.W.2d 48, 50 (Tex. Crim. App. 1997).
The Gassaway Court concluded that the performance of sobriety tests involving counting and reciting the alphabet show only the condition of a suspect's body. Id. at 51. Any indication of intoxication comes from a suspect's demeanor, the manner in which he speaks, and whether he has the mental ability to perform the tests correctly. Id. Therefore, performance of sobriety tests involving counting and reciting the alphabet are not testimonial in nature. Instead, they are physical evidence of the function
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