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Payne v. State8/29/2003
that before the truck hit her, Taylor was walking in the same direction he and Appellant were traveling "about four feet" outside of the "white line," and that he did not have to evade Taylor when he passed her.
As soon as he saw the collision, Bennington notified the dispatcher and drove his truck across the roadway in order to block oncoming traffic. He then attended to Taylor, noticed that she was still breathing, and went to the truck that hit Taylor to talk to the driver. When Bennington approached Appellant, he asked her, "Do you know what in the hell you just did?" Appellant gave no response.
Delvin Hatley ("Hatley"), a patrol sergeant for the Seven Points Police Department, testified that when he arrived at the scene of the accident, Aaron Lloyd ("Lloyd"), who was also a police officer with the Seven Points Police Department, a deputy from the Henderson County Sheriff's Department, and two officers from Tool were already at the scene. He took some pictures from Appellant's vantage point in her truck and noted that there was nothing obstructing Appellant's view while she was driving the truck. After two hours at the scene of the accident, Hatley went back to the police station, where Appellant and Lloyd were waiting. Appellant consented to taking a field sobriety test, and Hatley then conducted the "horizontal gaze nystagmus" (HGN) test. The test revealed that " he had a clear distinct nystagmus, a maximum deviation, and she had an onset of nystagmus prior to 45 degrees." These six clues (three in each eye) demonstrated to Hatley that Appellant was intoxicated. However, after Appellant took the test, Chief Daniels, the police chief of the Seven Points Police Department, decided to release her and she was "at-large for the charges."
On cross-examination, Hatley stated that although he did not include the fact that he gave Appellant the HGN test or the results of that test in the narrative report he made, he did recall giving the test to Appellant. Hatley further testified that the results of an HGN test give good "clues" of intoxication by drugs and alcohol. He agreed that the HGN test is just one of three standard field sobriety tests that are sanctioned by the National Highway Traffic Safety Administration, and that the HGN test, in and of itself, is not necessarily a good indicator of intoxication. He further acknowledged that nystagmus, or "jerking of the eyes," can occur naturally in a small percentage of the population or is a result of pathological and neurological disorders as well as brain injuries.
On re-direct examination, Hatley testified that other signs of intoxication include a person's "demeanor, the way they walk, their balance, the way they talk, things they say." He stated that after Appellant was taken to the police station, she exhibited signs that indicated "some sort of intoxication." Although Hatley's contact with Appellant was not "extensive," he noticed that her speech was "poor and slurred," she had poor balance, and she "mumbled some things" that he could not understand. He also noticed that Appellant exhibited the "highest" and "distinct" form of nystagmus in each of the clues in Appellant's eyes, and stated that he believed that on July 31, Appellant did not have the normal use of her mental and physical faculties.
Lloyd testified that around 1:00 p.m. on July 31, he was dispatched to the scene of the accident. When he arrived at the scene, he found Taylor lying on the pavement, receiving aid from a "civilian." After he checked on Taylor, he went to Appellant's truck in order to determine what had caused the collision. He began asking Appellant a series of questions, such as "where she was coming from and if she had a
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