TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 8164, HONORABLE CHARLES HEARN, JUDGE PRESIDING
Appellant first contends the district court erred by permitting certain testimony regarding the horizontal gaze nystagmus (HGN) test. The arresting officer testified that he administered three field sobriety tests at the roadside after stopping appellant, one of which was the HGN test. The officer defined "nystagmus" for the jury as "the involuntary jerking of the eyeballs." Over appellant's objection that he was not shown to be scientifically qualified to so testify, the officer told the jury that nystagmus occurs naturally in every individual and that alcohol will "enhance it so it can be seen by the naked eye." After describing how the test was conducted, the officer testified without further objection that he "found in each eye there was all three clues present, which was maximum deviation, lack of smooth pursuit, and the onset before 45 degrees."
The scientific theory underlying the HGN test has been held to be sufficiently reliable under rule 702. See Emerson v. State, 880 S.W.2d 759, 768 (Tex. Crim. App. 1994); Tex. R. Evid. 702. If properly applied, the technique employed in the HGN test is a reliable indicator of intoxication. See Emerson, 880 S.W.2d at 768-69. Appellant did not object to the officer's testimony describing appellant's performance on the test and does not now question the officer's application of the HGN technique in this case. The only issue on appeal is the officer's qualifications to testify to the effect of alcohol consumption on nystagmus. Because the reliability of the underlying science was recognized in Emerson, any error in admitting the challenged testimony was harmless. See Tex. R. App. P. 44.2(b). Point of error one is overruled.
Next, appellant contends the district court erroneously admitted evidence of other offenses at the guilt stage of trial. See Tex. R. Evid. 404(b). Two of the offenses to which appellant refers were his previous DWI convictions. "The prior intoxication-related offenses are elements of the [felony] offense of driving while intoxicated . . . and are admitted into evidence as part of the State's case-in-chief during the guilt-innocence stage of the trial." Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). As to these offenses, no error is presented.
Appellant also contends the State should not have been permitted to show that his probation for an earlier DWI conviction was revoked. Appellant testified on his own behalf. He admitted drinking one beer on the night he was stopped, but denied he was intoxicated. During cross-examination, the State was allowed to question appellant about his earlier DWI convictions, and to adduce the fact that his admitted drinking violated one of the conditions of his probation. We find no reference to or evidence of a probation revocation. No violation of rule 404(b) is shown. Point of error two is overruled.
The judgment of conviction is affirmed.
Lee Yeakel, Justice
Before Justices Jones, Yeakel and Patterson
Affirmed
Filed: April 20, 2000
Do Not Publish
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 8164, HONORABLE CHARLES HEARN, JUDGE PRESIDING
Appellant first contends the district court erred by permitting certain testimony regarding the horizontal gaze nystagmus (HGN) test. The arresting officer testified that he administered three field sobriety tests at the roadside after stopping appellant, one of which was the HGN test. The officer defined "nystagmus" for the jury as "the involuntary jerking of the eyeballs." Over appellant's objection that he was not shown to be scientifically qualified to so testify, the officer told the jury that nystagmus occurs naturally in every individual and that alcohol will "enhance it so it can be seen by the naked eye." After describing how the test was conducted, the officer testified without further objection that he "found in each eye there was all three clues present, which was maximum deviation, lack of smooth pursuit, and the onset before 45 degrees."
The scientific theory underlying the HGN test has been held to be sufficiently reliable under rule 702. See Emerson v. State, 880 S.W.2d 759, 768 (Tex. Crim. App. 1994); Tex. R. Evid. 702. If properly applied, the technique employed in the HGN test is a reliable indicator of intoxication. See Emerson, 880 S.W.2d at 768-69. Appellant did not object to the officer's testimony describing appellant's performance on the test and does not now question the officer's application of the HGN technique in this case. The only issue on appeal is the officer's qualifications to testify to the effect of alcohol consumption on nystagmus. Because the reliability of the underlying science was recognized in Emerson, any error in admitting the challenged testimony was harmless. See Tex. R. App. P. 44.2(b). Point of error one is overruled.
Next, appellant contends the district court erroneously admitted evidence of other offenses at the guilt stage of trial. See Tex. R. Evid. 404(b). Two of the offenses to which appellant refers were his previous DWI convictions. "The prior intoxication-related offenses are elements of the [felony] offense of driving while intoxicated . . . and are admitted into evidence as part of the State's case-in-chief during the guilt-innocence stage of the trial." Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). As to these offenses, no error is presented.
Appellant also contends the State should not have been permitted to show that his probation for an earlier DWI conviction was revoked. Appellant testified on his own behalf. He admitted drinking one beer on the night he was stopped, but denied he was intoxicated. During cross-examination, the State was allowed to question appellant about his earlier DWI convictions, and to adduce the fact that his admitted drinking violated one of the conditions of his probation. We find no reference to or evidence of a probation revocation. No violation of rule 404(b) is shown. Point of error two is overruled.
The judgment of conviction is affirmed.
Lee Yeakel, Justice
Before Justices Jones, Yeakel and Patterson
Affirmed
Filed: April 20,