In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00360-CR
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MARCUS LOUIS JAMES, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 3
Jefferson County, Texas
Trial Cause No. 299715
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MEMORANDUM OPINION
A jury convicted appellant Marcus Louis James of driving while intoxicated,
and the trial judge assessed punishment at a $2000 fine and one hundred eighty
days of confinement in the Jefferson County Jail, but suspended imposition of
sentence and placed James on probation for eighteen months. In two appellate
issues, James challenges the admission into evidence of the police officer’s
testimony concerning horizontal gaze nystagmus (HGN) testing of James and the
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legal sufficiency of the evidence without that testimony. We affirm the trial court’s
judgment.
THE EVIDENCE
Detective Jeremy Bearden of the Port Arthur Police Department testified
that he is assigned to the traffic unit, which primarily involves dealing with
intoxicated drivers, and he is certified in standardized field sobriety tests. On
August 28, 2013, Bearden stopped a white Ford pickup truck driven by James.
Bearden explained that he was in the parking lot of a gas station when he saw the
white truck and three other vehicles pull up to a flashing red traffic light and heard
their engines revving. According to Bearden, the two vehicles in front stopped at
the flashing red light and then “took off, . . . kind of like they were racing each
other, keeping up with each other. The two vehicles in back went straight through
the red light. They didn’t stop and wait. They were obviously trying to keep up
with the two in the front.” Bearden got into his patrol car and began chasing the
vehicles, and he eventually caught up with them as they were pulling into a parking
lot and detained all four suspects.
Bearden testified that he began speaking with the four subjects, and two
other officers, Officers Meza and Dinger, arrived. Meza performed field sobriety
testing on two of the subjects, and Bearden performed standardized field sobriety
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testing on the other two subjects. Bearden began his testing of James by
administering the HGN test, and he testified that James exhibited six out of six
possible clues. Bearden explained the three portions of the standardized HGN test:
(1) checking for smooth pursuit, which involves asking subjects to follow a light at
the end of a stylus with their eyes while keeping their heads still, and watching for
twitching of the eyes; (2) the maximum duration test, which involves bringing the
light all the way out, holding it for four to eight seconds, and having subjects focus
on it the entire time that the light is extended, again checking for twitching of the
eyes; and (3) “onset prior to 45 degrees[,]” which involves staying twelve inches
from subjects’ faces at a forty-five-degree angle, and watching for twitching of the
eyes. Bearden testified that each eye is checked twice on each individual test, so
there is one potential clue for each eye on each of the three HGN tests. According
to Bearden, James exhibited six clues.
Bearden then administered the walk and turn test to James. Bearden
explained that the walk and turn test involves having a subject walk along a
straight line, heel to toe, for nine steps, turn, and take nine steps back. Bearden
testified that he gave James the instructions for the test three times and
demonstrated the test twice. Bearden next administered the one-leg stand after
giving James instructions. Bearden explained that the one-leg stand involves
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having a subject raise his foot about six inches off the ground with his hands by his
side, keeping both legs straight, and looking down at the foot and counting for
thirty seconds. Bearden testified that, “[o]n a one-leg stand you look for if they put
their foot down, sway, use their arms for balance, or if they hop trying to stand
up[,]” and he explained that these things are clues as to whether the person is
intoxicated. According to Bearden, each of the field sobriety tests led him to
conclude that James was intoxicated. The State then played a video recording of
Bearden’s encounter with James for the jury.
Bearden explained that the HGN test was not performed on camera because
Bearden had stopped four subjects, and another officer had two of the subjects
standing where he would normally have performed the HGN test on James, so
Bearden elected to simply perform HGN testing of James beside the truck where
James was already standing. Bearden testified that his training enables him to
identify whether a subject is intoxicated. According to Bearden, James refused to
submit to a breath test, and James admitted that he had consumed several shots and
two beers that night.
Bearden explained that there is no policy or practice about placing a subject
in front of the police vehicle to perform the HGN test. Bearden testified that he
does not pay attention to where he administers HGN testing, and HGN clues
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cannot be seen with a camera, but he does insure that the walk and turn test and the
one-leg stand are on video because the clues are visible on video. According to
Bearden, James started the walk and turn test too early and failed to maintain his
position, both of which are clues. James also turned in the wrong direction, stopped
while he was walking, and used his arms for balance. With respect to the one-leg
stand test, Bearden explained that James swayed during the test, which is one of
the four possible clues. After concluding the field sobriety testing, Bearden
arrested James for driving while intoxicated. The State rested at the conclusion of
Bearden’s testimony. The jury found Bearden guilty, and the trial judge assessed
punishment.
ISSUES ONE AND TWO
In issue one, James challenges the admission into evidence 1 of the police
officer’s testimony concerning the HGN testing of James. In issue two, James
challenges the legal sufficiency of the evidence without the testimony regarding
the HGN testing. Specifically, James contends Bearden deliberately and in bad
faith conducted the HGN test in a location where it could not be captured on video,
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James filed a pretrial motion requesting exclusion of testimony regarding
the HGN test administration and results, alleging that (1) Bearden intentionally
administered the test off camera to prevent counsel from determining whether the
examination was properly administered; (2) without reliability evidence, the test
cannot meet the requirements for admission of expert testimony; and (3) the
testimony “is extremely prejudicial and yet has little probative value.”
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and that the evidence is therefore unreliable because James’s counsel could not
review the manner in which Bearden administered the test. We address issues one
and two together.
In reviewing the legal sufficiency of the evidence, we review all the
evidence in the light most favorable to the verdict to determine whether any
rational fact finder could have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The fact finder is the ultimate authority
on the credibility of witnesses and the weight to be given their testimony.
Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full
deference to the fact finder’s responsibility to fairly resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains conflicting
inferences, we must presume that the fact finder resolved such facts in favor of the
verdict and defer to that resolution. Brooks v. State, 323 S.W.3d 893, 900 n.13
(Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). We also determine whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the
light most favorable to the verdict. Clayton, 235 S.W.3d at 778.
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We review a trial court’s ruling admitting evidence for abuse of discretion,
and we must uphold the trial court’s ruling if it falls “within the zone of reasonable
disagreement.” Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); see
also Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The trial
court errs when its ruling admitting the evidence “is so clearly wrong as to lie
outside that zone within which reasonable persons might disagree.” McDonald v.
State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).
Rule 702 of the Texas Rules of Evidence states that a witness “who is
qualified as an expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue.” Tex. R. Evid. 702. The Texas Court of Criminal
Appeals has held that testimony concerning the HGN test is scientific evidence and
is therefore admissible under Rule 702 if it meets the requirements set forth in
Kelly v. State, 824 S.W.2d 568, 573-74 (Tex. Crim. App. 1992). Emerson v. State,
880 S.W.2d 759, 764 (Tex. Crim. App. 1994). As discussed above, James contends
the HGN testing evidence was inadmissible because the HGN test was conducted,
intentionally and in bad faith, in a location where it could not be captured on video,
thereby violating his due process rights.
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The jury heard evidence that Bearden testify that he is assigned to the traffic
unit and is certified in conducting standardized field sobriety tests. Bearden
explained in detail the procedure for conducting the HGN, as well as the types of
clues a subject may exhibit during HGN testing, and he testified that he followed
the standardized procedures in his HGN testing of James. The jury also heard
Bearden explain why he did not perform the HGN testing on camera, and that there
is no policy or practice about placing a subject in front of the police vehicle to
perform the HGN testing. Bearden testified that HGN clues cannot be seen with a
camera. No evidence was introduced to indicate that Bearden acted intentionally or
in bad faith when deciding to administer the HGN test out of the camera’s view.
In support of his argument, James cites State v. Rudd, 255 S.W.3d 293 (Tex.
App.—Waco 2008, pet. ref’d). However, Rudd did not hold that the failure to
videotape the HGN test bars its admission into evidence. Id. at 301-02. Rather, the
Rudd court merely upheld the trial court’s order granting a motion to suppress
HGN testimony because the trial court had determined that the officer who
administered the HGN test lacked credibility and failed to properly perform the
test. Id. at 301. James cites no authorities holding that the lack of a video recording
renders evidence of HGN testing inadmissible, or that lack of a video recording
violates his right to due process, and we are aware of none. For all of these reasons,
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the trial court did not abuse its discretion by admitting Bearden’s testimony
regarding the HGN testing into evidence. We overrule issue one.
We turn now to the legal sufficiency of the evidence. The State had the
burden to prove that Bearden was intoxicated while operating a motor vehicle in a
public place. See Tex. Penal Code Ann. § 49.04(a) (West Supp. 2014). The jury
heard evidence that Bearden stopped James and three other subjects who appeared
to be racing. Bearden testified that James exhibited six out of a possible six clues
on the HGN test , and he also exhibited clues on both the walk and turn test and the
one-leg stand. In addition, the jury heard testimony that James told Bearden he had
consumed several shots and two beers that evening, and that James refused to
submit to a breath test. The jury also viewed a video of James’s performance of the
walk and turn and one-leg stand tests. As we have previously explained, the trial
court did not err by admitting evidence of the HGN testing. Regardless of whether
or not the HGN evidence is considered, we conclude that a rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
See Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at 13; Penagraph, 623 S.W.2d
at 343. We overrule issue two and affirm the trial court’s judgment.
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AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on July 27, 2015
Opinion Delivered August 26, 2015
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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