COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-305-CR
DEBRA HARTSOCK APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. Introduction
Appellant Debra Hartsock appeals from her conviction for driving while
intoxicated. In her sole point, Appellant contends that the admission of a
DVD—showing a person’s eyes with and without nystagmus—as demonstrative
evidence was reversible error because the State failed to establish the scientific
reliability of the Horizontal Gaze Nystagmus (HGN) test performed on the DVD. W e
will affirm.
II. Background
Shortly before 2 p.m. on November 19, 2008, while driving northbound on
Locust Street in Denton, Texas, Lawrence Gregg observed a Jeep approximately
100 yards in front of him lose control, roll a couple of times, and come to rest on the
driver’s side with the undercarriage facing northeast. Gregg testified that the road
was dry and that he did not observe any cars or obstacles that would have forced the
Jeep off the road. Gregg’s passenger called 9-1-1 while Gregg checked on the Jeep
driver. As Gregg approached, he smelled alcohol coming from the Jeep and saw
Hartsock crawl out of the passenger window.
Gregg testified that Hartsock appeared to be in shock, that she profusely
cursed about wrecking her Jeep, but that she did not appear to be injured except for
a cut on her face. Gregg also testified that Hartsock slurred her speech and
appeared drunk.
Responding to a dispatch call, Denton Police Officers Kevin Vice and Alfonso
O’Rozco arrived at the accident scene and observed Hartsock standing near her
vehicle, crying hysterically, squatting up and down, and alternately screaming and
cursing. Officer Vice noticed a couple of small cuts on Hartsock’s fingers but did not
observe any signs of a head injury or bruising. Hartsock denied being injured.
W hen Officer Vice inquired as to the cause of the accident, Hartsock replied that she
was talking on her cell phone and “the next thing she knows, she wrecks.” Officer
Vice testified he detected the smell of alcohol on Hartsock’s breath.
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The paramedics found no other injuries, and Hartsock refused transport to the
hospital. Officer Vice observed Appellant had red and glassy eyes, slurred speech,
and staggered as she walked toward his patrol car. Hartsock denied drinking
alcohol, but told Officer Vice she had taken some nonprescription medication three
days earlier. Officer Vice administered the HGN test to Hartsock. He testified that
Hartsock exhibited all six clues of intoxication, could not correctly follow his
instructions, and swayed while he administered the test.
While Officer O’Rozco investigated the accident, during which he removed two
rum bottles—one empty and one half-empty—from Hartsock’s vehicle, Officer Vice
asked Hartsock to perform additional field sobriety tests. Hartsock could not
correctly recite the alphabet. Hartsock also failed the walk-and-turn test in that she
was neither able to follow Officer Vice’s instructions nor maintain her balance during
the test, eventually refusing to complete the test. Officer Vice testified that based on
his observations and the totality of circumstances, he concluded that Hartsock had
lost the normal use of her mental and physical faculties, and he arrested her for the
offense of driving while intoxicated. He also testified that Hartsock refused to
provide a blood sample to be tested for her blood alcohol concentration.
On February 12, 2009, the grand jury indicted Hartsock for the third-degree
felony offense of driving while intoxicated with two prior convictions. The indictment
contained an enhancement paragraph raising the punishment range to that of a
second-degree felony. At the jury trial on August 19, 2009, Hartsock pleaded not
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guilty to the primary charge of driving while intoxicated and pleaded true to the
enhancement paragraphs regarding two prior driving while intoxicated convictions.
During the trial, the State offered—for demonstrative purposes only—a DVD
featuring videos of an individual’s eyes with and without nystagmus. Upon
Hartsock’s objection, the trial court held a hearing outside the presence of the jury
to determine the admissibility of the DVD. Officer Vice testified that the DVD is a
training tool used by the district attorney’s office to show police officers how a
person’s eyes look with and without horizontal gaze nystagmus, that he had viewed
the videos at the district attorney’s office during a training session, and that the
videos would assist him with his testimony. He further testified that he did not know
who created the videos. Hartsock objected because Officer Vice could not vouch
for the authorship, authenticity, or scientific principles applied in the videos. The trial
court overruled Hartsock’s objection.
Officer Vice testified that Hartsock’s eyes are not on the DVD, but that the
videos would help the jury understand “what someone’s eyes looked like when they
have HGN and when they don’t.” The trial court instructed the jury that the videos
did not show Hartsock’s eyes, and did not indicate the level of alcohol consumption
the individual in the video consumed in order to demonstrate HGN, but was being
shown “just to aid you in the officer’s testimony what he observed, or at least to show
you what he believed he observed.” After the DVD was played for the jury, Officer
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Vice testified that he saw all six clues of intoxication in the DVD’s second video and
that they were the same six he observed in Hartsock’s eyes.
The jury found Hartsock guilty and assessed her punishment at fourteen
years’ confinement. The trial court sentenced her accordingly.
III. Analysis
In her sole point on appeal, Hartsock contends that the trial court erred by
admitting the DVD as demonstrative evidence. Specifically, Hartsock argues that
the DVD was inadmissible because the State failed to establish the scientific
reliability of the test it portrayed.
A. Standard of Review
A trial court’s ruling on the admissibility of evidence is reviewed under an
abuse of discretion standard. Moses v. State, 105 S.W .3d 622, 627 (Tex. Crim.
App. 2003). If the trial court’s ruling was within the zone of reasonable
disagreement, there is no abuse of discretion. Id.
B. Trial Court’s Admission of DVD Not An Abuse of Discretion
1. Demonstrative Evidence Is Admissible To Explain Testimony
Demonstrative evidence is evidence admitted to serve as a visual aid or
illustration that meets the tests of relevancy and materiality, as well as the limitations
imposed by Texas Rule of Evidence 403. Baker v. State, 177 S.W .3d 113, 123 (Tex.
App.—Houston [1st Dist.] 2005, no pet.). The trial court’s discretion to permit the
use of visual aids, charts, and video recordings during trial is well established.
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Marras v. State, 741 S.W .2d 395, 404–05 (Tex. Crim. App. 1987), overruled on other
grounds, 851 S.W .2d 853, 860 (1993) (holding that a videotaped re-enactment of the
defendant’s flight from the crime scene was admissible); Baker, 177 S.W .3d at 123.
Demonstrative evidence has no independent relevance to the case but is
offered to help explain or summarize the witness's testimony or to put events and
conditions into a better perspective. Torres v. State, 116 S.W .3d 208, 213 (Tex.
App.—El Paso 2003, no pet.). To establish the relevancy of demonstrative
evidence, the proponent must first authenticate it. Id. The proponent is then
required to establish that the evidence is fair and accurate and that it helps the
witness to demonstrate or illustrate his testimony. Id.; see Simmons v. State, 622
S.W .2d 111, 113 (Tex. Crim. App. [Panel Op.] 1981) (holding that demonstrative
evidence is admissible if it tends to solve some issue in the case and is relevant, that
is, if it sheds light on the subject at hand). Demonstrative evidence must be properly
identified by showing that the item in question is what its proponent claims as
opposed to any idea of speculation, conjecture, or presumption of what the exhibit
represents. Torres, 116 S.W .3d at 213 (citing Vollbaum v. State, 833 S.W .2d 652,
657 (Tex. App.—W aco 1992, pet. ref’d)). Demonstrative evidence has no probative
force beyond that which is lent to it by the credibility of the witness whose testimony
it is used to explain. Id.
2. As Demonstrative Evidence, State Did Not Need to Prove Scientific
Reliability of HGN Test on DVD
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Hartsock argues that because Officer Vice neither knew who made the videos
nor the qualifications of the HGN test administrator on the DVD, the State submitted
no proof that the scientific technique judicially noticed to be reliable in Emerson v.
State was properly followed in making the videos. See 880 S.W .2d 759, 768–69
(Tex. Crim. App. 1994).
To establish the reliability of scientific evidence, the proponent must show: (1)
the underlying scientific evidence is valid; (2) the technique applying the principle
must be valid; and (3) the technique must have been properly applied on the
occasion in question. Kelly v. State, 824 S.W .2d 568, 572 (Tex. Crim. App. 1992).
In Emerson, the court took judicial notice that the HGN test, as designed and
promoted by the National Highway Traffic Safety Administration (NHTSA), meets the
first two of the three Kelly requirements for determining the admissibility of scientific
evidence. Emerson, 880 S.W .2d at 768. However, evidence must show that the
third requirement was met—that the HGN technique was applied properly—on the
occasion in question. Id. at 768–69.
Here, a review of the record indicates that the DVD was not used as a
scientific method of proof that Hartsock was intoxicated, but to aid the jury in
understanding HGN. Officer Vice authenticated and identified the DVD as one he
viewed in the district attorney’s office and that it is used to help officers identify an
individual with horizontal gaze nystagmus. Officer Vice explained to the jury that
Hartsock’s eyes were not on the videos and that the DVD would help him with his
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testimony because the DVD would help the jury understand the signs he looks for
when conducting the HGN test. In addition, the trial court instructed the jury that the
DVD did not show Hartsock’s eyes and that it was admitted only to aid the jury in
understanding what Officer Vice believed he observed as he conducted the HGN
test on Hartsock. Finally, the record does not indicate that the DVD was used as
direct or substantive evidence to support Hartsock’s intoxication. 1 The DVD was
admissible as demonstrative evidence. See Thrasher v. State, No. 12-09-00334-
CR, 2010 WL 2638070, at *2 (Tex. App.—Tyler June 30, 2010, no pet.) (mem. op.,
not designated for publication).
Having determined that the trial court did not abuse its discretion in admitting
the DVD as demonstrative evidence, we overrule Hartsock’s sole point.
IV. Conclusion
Having overruled Hartsock’s sole point, we affirm the trial court’s judgment.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
PUBLISH
DELIVERED: August 19, 2010
1
The record does not reveal that the State mentioned the videos on the
DVD during closing argument or at any other point in the trial.
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