Affirmed and Memorandum Opinion filed June 2, 2011.
In The
Fourteenth Court of Appeals
___________________
NO. 14-10-00267-CR
___________________
Randy Scott Hall, Appellant
V.
The State of Texas, Appellee
On Appeal from the County Court at Law #3 and Probate Court
Brazoria County, Texas
Trial Court Cause No. 175571
MEMORANDUM OPINION
A jury found appellant Randy Scott Hall guilty of the misdemeanor offense of driving while intoxicated (“DWI”), and the trial judge sentenced him to 120 days imprisonment in the Brazoria County Jail. On appeal, Hall contends (1) the trial court erred in allowing a state trooper to testify as to the results of a horizontal-gaze-nystagmus test conducted on Hall, and (2) the evidence is legally insufficient to support his conviction. We affirm.
I
Officer Brandy Gandy of the Surfside Beach Police Department was on patrol on July 30, 2009, when she received a report from dispatch that a suspicious person was approaching residents’ homes and allegedly trying to gain entry. While stopped at an intersection, Officer Gandy noticed a white Pontiac matching the description of the vehicle the suspicious person was reportedly driving. Officer Gandy followed the white Pontiac until it turned in to a private residence. Officer Gandy testified she knew the owners of the residence lived in Houston and were not at the residence at the time. Roughly five to ten minutes later, Officer Gandy returned to the house to find the white Pontiac still parked in the driveway and Hall seated at a picnic table. The picnic table was underneath the house, which was built on stilts as it was near the Gulf.
Hall told Officer Gandy he did not know who owned the home but that he just needed a place to sit down. Officer Gandy testified she smelled alcohol on Hall and that Hall admitted he had been drinking. When Hall became frustrated with Officer Gandy’s questioning, she handcuffed him and placed him in the back of her patrol unit. Department of Public Safety State Trooper Clinton Cole arrived on the scene as Officer Gandy was moving to handcuff Hall. Trooper Cole testified Hall displayed an aggressive and combative stance toward Officer Gandy, and that he stopped out of concern for Officer Gandy’s safety. Trooper Cole testified that Hall smelled of alcohol, had bloodshot and glassy eyes, and slurred speech.
After Hall was removed from Officer Gandy’s patrol unit, Trooper Cole asked Hall if he would agree to take field-sobriety tests. Trooper Cole first attempted to administer the horizontal-gaze-nystagmus (“HGN”) test, in which Hall was asked to follow with his eyes the movements of a pen held by Trooper Cole. When asked if he had ever received any head injuries, Hall said he had been “beat up a lot,” and when asked if he had previously been diagnosed with nystagmus, Hall said he did not know what the word meant and that he had only a third-grade education. He further warned Trooper Cole he might not be able to pass sobriety tests because he was “crippled” due to back and elbow problems and a previously broken ankle.
Throughout the exchange, Hall appeared unable or unwilling to follow Trooper Cole’s instructions in taking the HGN test. Trooper Cole repeatedly restarted the test, admonishing Hall to watch the pen. At several points Hall broke off the test, saying he was “worried about that hand,” in reference to Trooper Cole’s right hand, which was resting on his belt while he administered the HGN test with his left hand. Hall claimed to be worried because “you guys beat me up a lot, man.” Trooper Cole, who wore his gun on the left side of his body, repeatedly assured Hall there was nothing on his belt where his right hand was resting and that he would not hurt Hall unless Hall became violent. Hall then professed to be a “paranoid schizophrenic.” Outside the presence of the jury, Trooper Cole testified Hall “never was cooperative” during the HGN test and tried to “stare me down about 90 percent of the time.” Nevertheless, Trooper Cole testified that he found all six clues for intoxication the HGN test is designed to detect over the course of the roughly two minutes he administered the test.
Trooper Cole then attempted to have Hall perform a walk-and-turn test. Hall seemed confused by the instructions of the test, first being unclear as to which car Trooper Cole was asking him to walk toward, and then asking if he could walk toward a post instead. When he attempted to start the test, Hall immediately lost his balance when he put one foot in front of the other. He then asked if he could take off his boots for the test, and also asked if they could move to perform the test on concrete. Trooper Cole complied with both requests. Hall then uttered a racial slur as he became increasingly uncooperative in taking the walk-and-turn test.
Trooper Cole then asked Hall to perform the one-leg-stand test. Hall refused, telling Trooper Cole “[y]ou’re gonna arrest me no matter if I can do this or not.” Hall subsequently refused to provide a breath sample and was arrested. An inventory search of Hall’s car produced six empty Bud Light “tall boy” beer cans located on the front passenger-side floorboard along with mail addressed to Hall.
II
We first address Hall’s second issue, in which he argues the evidence was legally insufficient to support his conviction. In a legal-sufficiency review, we examine all of the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Although we consider everything presented at trial, we do not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).
Hall argues there was no evidence from Hall’s driving indicating he had lost his mental or physical faculties, noting Officer Gandy’s testimony that Hall broke no traffic laws and made a successful turn into the residence where he was ultimately arrested. Hall further argues that Trooper Cole’s testimony concerning the results of the HGN test amount to no evidence because the test was improperly administered. Hall also contends that his performance on the walk-and-turn test can be explained by his claimed disability and because he is “at least fifty pounds overweight.” Hall also maintains the evidence is legally insufficient because Hall was not asked to perform field-sobriety testing until roughly thirty minutes after parking at the residence. Accordingly, Hall contends the only evidence weighing against Hall is (1) two officers’ testimony that he smelled of alcohol and displayed signs of intoxication such as bloodshot and glassy eyes; (2) Hall’s own admission that he had been drinking; (3) Trooper Cole’s testimony that Hall lost his balance while performing the walk-and-turn test, which is also reflected in video taken from the dash cam in Trooper Cole’s patrol unit; (4) Hall’s refusal to perform the one-leg-stand test and to provide a breath sample; and (5) Hall’s general behavior toward the officers, which he contends “show[s] nothing more than a dislike of law enforcement and offers no evidence toward [Hall’s] intoxication.”
The evidence Hall admits weighs against him, however, is sufficient for a rational jury to find him guilty of DWI beyond a reasonable doubt. Two officers testified that Hall displayed signs of intoxication, and Trooper Cole directly testified that he believed Hall was intoxicated, while Officer Gandy testified Hall admitted he had been drinking. This testimony in itself is sufficient to support a DWI conviction. See Whisenant v. State, 557 S.W.2d 102, 105 (Tex. Crim. App. 1977). Furthermore, the refusal to participate in field-sobriety testing and to submit a breath sample tends to show consciousness of guilt and is relevant evidence for the jury to consider. See Tex. Transp. Code § 724.061; Bartlett v. State, 270 S.W.3d 147, 153 n.20 (Tex. Crim. App. 2008) (defendant’s refusal to submit to a breath test relevant to show consciousness of guilt). The jury also considered Trooper Cole’s testimony that he found all six clues for intoxication through the HGN test, which we consider in our analysis even if Trooper Cole’s testimony was inadmissible. See Dewberry, 4 S.W.3d at 740 (inadmissible and admissible evidence considered in legal-sufficiency analysis). And the jury saw video of Hall’s performance on these tests, which included Hall losing his balance as he attempted to begin the walk-and-turn test, as well as his overall behavior and demeanor toward the officers throughout the encounter. In viewing the video, the jury was in a position to determine for itself whether Hall displayed signs of intoxication that can be visually discerned. See Cotton v. State, 686 S.W.2d 140, 143 n.3 ((Tex. Crim. App. 1985) (noting that evidence of intoxication includes slurred speech, unsteady balance, and a staggered gait). The jury was also free to assign weight to the six empty “tall boy” beer cans found in Hall’s car.
Of course the jury was likewise free to consider that Hall drove safely to the residence where he was arrested and that his claimed disabilities and overweight condition might have affected his ability to perform field-sobriety tests, and reconcile this evidence with other evidence tending to show his intoxication. We do not substitute our judgment for the jury’s determination of the weight and credibility of this evidence. See Williams, 235 S.W.3d at 750. Even if we disregarded the evidence Hall contends should not have been admitted or which constituted no evidence at all, there was sufficient evidence for a rational jury to find him guilty beyond a reasonable doubt. See Jackson, 443 U.S. at 319.
III
Hall also argues the trial court erred in allowing Trooper Cole to testify concerning the results of the HGN test because the test was not administered according to the protocol for field-sobriety testing outlined by the National Highway Transportation Safety Administration (“NHTSA”). At trial, Trooper Cole testified he was able to detect all six clues for intoxication discernable through the HGN test despite Hall’s uncooperative behavior. Hall argues Trooper Cole should have been allowed to testify only that Hall refused to perform the HGN test rather than state his conclusions from a test that was never fully administered. We review a trial court’s admission of evidence for an abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). A trial court abuses its discretion when its decision is “so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Id.
Nystagmus is an involuntary rapid oscillation of the eyes in a horizontal, vertical, or rotary direction. Emerson v. State, 880 S.W.2d 759, 765 (Tex. Crim. App. 1994). Horizontal-gaze nystagmus refers to the inability of the eyes to smoothly follow an object moving horizontally across the field of vision, particularly when the object is held at an angle of forty-five degrees or more to the side. See Webster v. State, 26 S.W.3d 717, 719 n.1 (Tex. App.—Waco 2000, pet ref’d). Consumption of alcohol exaggerates nystagmus to the degree that it can be observed with the naked eye. Emerson, 880 S.W.2d at 766.
In Emerson, the Court of Criminal Appeals examined the underlying scientific theory of HGN testing and determined the science is valid. 880 S.W.2d at 769. In doing so, the court relieved the State of the burden of presenting scientific evidence regarding HGN testing to satisfy the proof-of-reliability requirement imposed by Kelly v. State. See 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Although the Emerson court held that the HGN technique is applied properly when the officer follows the standardized procedures outlined in the DWI Detection Manual published by NHTSA, we have previously recognized that slight variations in administering the test do not necessarily undermine the admissibility of an individual’s performance on the test. Plouff v. State, 192 S.W.3d 213, 221 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see also Compton v. State, 120 S.W.3d 375, 378 (Tex. App.—Texarkana 2003, pet. ref’d).
Trooper Cole administered the HGN test over the course of roughly two minutes. In the video, Trooper Cole’s body blocks Hall from view, but Trooper Cole can be seen repeatedly restarting the test and admonishing Hall to watch the pen. During the two minutes, Hall repeatedly stops performing the test and expresses concerns about what Trooper Cole is doing with his right hand. Hall seemed to cooperate with Trooper Cole during two intervals of roughly fifteen and forty seconds. On voir dire and outside the presence of the jury, Trooper Cole testified he “did get [Hall] to follow the pen a couple of times.” When defense counsel asked Trooper Cole if it would be more accurate to say Hall refused to cooperate, Trooper Cole insisted he was able to discern all six clues for intoxication.
Even if the trial court abused its discretion in admitting evidence of the HGN test results, we conclude Hall was not harmed. Error in the admission of evidence constitutes nonconstitutional error. See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). A reviewing court is to disregard a nonconstitutional error that does not affect the substantial rights of the defendant. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In making this determination, we consider the trial court’s admission of Trooper Cole’s testimony on the results of the HGN test in the context of the entire record. See Motilla v. State 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002).
Two officers testified that Hall smelled of alcohol, and Officer Gandy testified Hall admitted he had been drinking. Trooper Cole further testified that Hall’s eyes were bloodshot and glassy, and that he believed Hall was intoxicated. After Hall was arrested, six empty “tall boy” beer cans were found in his car. If Hall is correct that at the most Trooper Cole should have been allowed to testify only that Hall refused to cooperate with the HGN test, the jury would have then considered that Hall failed to cooperate with not one but two field-sobriety tests (the HGN and walk-and-turn tests), and outright refused two more (one-leg-stand test and breath sample). When Hall briefly attempted the walk-and-turn test, he immediately lost his balance after putting one foot in front of the other and before taking even a single step. Furthermore, a nearly eight-minute-long video demonstrates Hall’s inability to understand and follow instructions as well as his general behavior toward the officers, from which the jury could have deduced that Hall was intoxicated. In light of this evidence, we conclude any error from allowing Trooper Cole to testify concerning the HGN test results was harmless. We overrule Hall’s first issue. See King, 953 S.W.2d at 271.
* * *
For the foregoing reasons, we affirm the trial court’s judgment.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Brown, Boyce, and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).