Affirmed and Memorandum Opinion filed June 29, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-02-01265-CR
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JOSE LUIS RODRIGUEZ, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Criminal Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 1117884
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M E M O R A N D U M O P I N I O N
Jose Luis Rodriguez, Jr. appeals a conviction for DWI[1] on the grounds that the trial court abused its discretion by: (1) allowing Officer Staton to testify regarding his administration of the HGN test; and (2) limiting appellant=s right to cross-examine Staton regarding his qualifications and credibility. We affirm.
Rodriguez=s first issue contends that the trial court should not have allowed Staton to testify regarding the results of appellant=s HGN test because the validity of Staton=s HGN certification, and thus his qualification to testify, was discredited by another witness.[2]
A trial court=s determination whether a witness is qualified to testify as an expert is reviewed for abuse of discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000).
For testimony concerning a defendant=s performance on the HGN test to be admissible, it must be shown that the witness testifying is qualified as an expert on the HGN test, specifically concerning its administration and technique. Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994). In the case of a police officer, this requirement will be satisfied by proof that the officer has received practitioner certification by the State of Texas to administer the HGN. Id.
In this case, Staton testified, and provided supporting documentation, that he had become duly certified to administer the HGN test. Among the thirty-five field evaluations Staton reported performing to satisfy his certification requirements was that of another DWI arrestee, Trenholme. Trenholme testified in this case that, on the evening of his arrest, he did not remember Staton or anyone else in a Constable=s uniform performing the test on him. Appellant thus contends that this testimony casts too much doubt on Staton=s HGN certification to allow him to testify as an expert.
However, Trenholme=s arrest had been roughly eighteen months before he testified in this case, and records introduced into evidence by appellant indicate that Trenholme=s breath alcohol concentration was 0.13 at the time. Under these circumstances, it was within the trial court=s discretion to conclude that Trenholme=s testimony was too lacking in credibility to cast legitimate doubt on the reliability of the information Staton reported to obtain his certification. Because appellant=s first issue thus fails to demonstrate any abuse of discretion by the trial court in admitting Staton=s testimony, it is overruled.
Appellant=s second and third issues argue that the trial court violated his constitutional rights to confrontation by denying his right to cross-examine Staton with evidence that he provided false information to obtain his HGN certification.
The right to confrontation is intended to prevent, among other things, improper restrictions on the types of questions that defense counsel may ask during cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987). In this case, it is not clear from appellant=s brief or the reporter=s record with what evidence appellant was denied any right to cross-examine Staton. In appellant=s bill of exceptions, defense counsel asked Staton about the field evaluations he reported to obtain his certification, including that of Trenholme, but did not cross-examine Staton with Trenholme=s testimony or any other evidence suggesting that the information he provided was false. Under these circumstances, appellant=s second and third issues present nothing for our review and are overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed June 29, 2004.
Panel consists of Justices Fowler, Edelman, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] A jury convicted appellant, sentenced him to 180 days in jail, probated for 18 months, and imposed a $750.00 fine.
[2] However, in discussing his second and third issues, appellant=s brief contradicts this assertion by stating that AStaton=s purported certification was not necessary for the admission of his testimony on the HGN administered to Appellant.@