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distinguishing Rivenburgh and holding issue was one of reasonable suspicion rather than probable cause when the officer decided to pull the appellant over for failing to drive in a single lane and to see if he was intoxicated
Summary of this case from Walker v. StateOpinion
No. 05-03-01785-CR
Opinion Filed February 1, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court, Dallas County, Texas, Trial Court Cause No. MB03-19040-A. Affirm.
Before Justices WRIGHT, RICHTER, and MAZZANT.
OPINION
Kent Lance McClain appeals his jury conviction for driving while intoxicated (DWI). In four points of error, McClain asserts the trial judge (1) failed to properly perform his "gatekeeping" duty of ensuring the arresting officer's testimony regarding certain field sobriety tests rested on a reliable foundation; (2) abused his discretion in allowing the arresting officer, a lay witness, to provide expert testimony concerning the tests; (3) erred in denying McClain's motion to suppress; and (4) erred in overruling McClain's objection to improper jury argument. We affirm.
Background
First-year officer Byron Mitchell was on routine patrol when he observed McClain's pick-up truck move sideways into the neighboring lane without signaling and almost strike a car in that lane. Uncertain whether McClain's act was a "simple mistake" or the result of being intoxicated, Mitchell activated the video camera in his car and decided to follow McClain. McClain returned to his lane but would not stay in it; he rode on the lane dividers and drove in two lanes until finally making a wide left turn. At that point, Mitchell pulled McClain over and approached him. Mitchell noticed a strong smell of alcohol coming from McClain, and because McClain's speech was slurred, Mitchell administered two field sobriety tests (FSTs)-the "one-leg-stand" and the "walk-and-turn/heel-to-toe." Based on McClain's performance, Mitchell arrested him for DWI. Prior to trial, McClain filed a motion to suppress evidence arguing Mitchell lacked probable cause to stop him. McClain also filed a motion in limine seeking to exclude evidence of the FSTs because of their unreliability. At the hearings on the motions, Mitchell testified concerning his training and knowledge about FSTs and also explained that he stopped McClain for failing to stay in a single lane in violation of the traffic code and to "see" if he was intoxicated. The trial judge also heard testimony from McClain's expert, toxicologist James Booker, concerning the reliability of FSTs and their purpose. Based on the testimony, the trial judge denied the suppression motion and request to exclude evidence of the FSTs. However, the trial judge concluded Mitchell was not qualified as an expert and could testify only as a lay witness. The evidence at trial consisted of the videotape of the stop and of McClain at the station as well as the testimony of Mitchell and Booker. Mitchell testified that he had received an eight-hour class on detecting signs of intoxication and had six months of field training. Although he was not a certified field sobriety officer, he was not required to be in order to administer the FSTs and had administered between ten and fifteen at the time of McClain's arrest. Over objection, Mitchell explained the two FSTs he administered to McClain and what "clues" of impairment those FSTs might reveal. According to Mitchell, McClain "performed poorly" and "failed" both. Specifically, during the one-leg stand, McClain could not keep his hands to the side, could not keep his leg up for the required period of time, swayed, and stumbled. During the walk-and-turn, McClain could not put his right foot in front of his left foot as instructed, did not touch heel to toe, used his hands to maintain his balance, almost fell when he turned, and took less than the nine steps instructed to take. Mitchell explained he was "not testifying as to the reliability of the tests" but what he used to determine intoxication. Based on his observations, Mitchell believed McClain had "lost the normal use of his mental and physical faculties" and was intoxicated. On cross-examination, Mitchell admitted that a certified field sobriety officer would be more qualified than he to administer the FSTs, that the failure to administer the FSTs properly could result in "false positives," and that wearing boots with heels, which McClain was wearing at the time of the arrest, could affect performance on the FSTs. Mitchell also admitted that at the station, McClain "was showing his mental faculties" and was steady on his feet. Booker explained that FSTs are unreliable "in many situations" and that certified field sobriety officers undergo "very specific" training in order to learn "the nuances" of administering FSTs and the "clues" that are sought. For example, a "lay person" might construe not actually touching toe to heel during the "walk-and-turn" as a "clue" when a certified officer would know to allow a "grace" of a half inch. Booker testified that because of the "very specific" training received, a certified officer is more credible than a "lay person."Field Sobriety Tests
McClain's first two points of error stem from Mitchell's testimony concerning the FSTs. Specifically, in his first point, McClain asserts the FSTs were "technical" tests to which only an expert could testify and the trial judge, as "gatekeeper," should have ensured Mitchell's testimony concerning the FSTs was not only relevant but rested on a reliable foundation. Relying primarily on Texas Rule of Evidence 702 and case law, McClain notes that Mitchell admitted he did not know how reliable or accurate either FST was, did not know of any studies concerning the reliability or accuracy of the FSTs, and did not know whether the FSTs had been subjected to meaningful peer review. McClain also argues that Mitchell's administering the FSTs without having McClain remove his boots indicated Mitchell might have improperly conducted the FSTs. Mitchell's lack of knowledge and experience, McClain argues, precluded admission of Mitchell's testimony. In his second point, relying primarily on rules of evidence 701 and 702, McClain complains that even if Mitchell's general testimony concerning the tests was properly admitted as lay opinion testimony, his testimony concerning the "clues" he looked for during the tests, whether those "clues" indicated McClain was intoxicated, and whether McClain "passed" or "failed" the tests improperly "converted" Mitchell's lay testimony to expert testimony and should have been excluded. We review rulings on the admissibility of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will find a trial court's ruling on the admissibility of evidence to be reversible error when the court acts without reference to any guiding principles and appellant has been harmed. See Tex.R.App.P. 44.2; Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Because the erroneous admission of evidence does not rise to the level of constitutional error, we look only to see if an appellant's substantial rights have been affected in determining whether an appellant has been harmed by such evidence. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997); Phelps v. State, 999 S.W.2d 512, 520 (Tex.App.-Eastland 1999, pet. ref'd). In making this determination, we consider the entire record, including the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). We also may consider the parties' trial theories, the court's instructions to the jury, and the parties' closing arguments. Id. We will find the error to be harmless when the record provides us a "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon, 49 S.W.3d at 365 (citation omitted). Texas Rules of Evidence 701 and 702 allow both lay and expert witnesses to offer opinion testimony concerning intoxication. See Tex. Rs. Evid. 701, 702; Emerson v. State, 880 S.W.2d 759, 763 (Tex.Crim.App. 1994). Because the one-leg-stand and walk-and-turn FSTs are grounded in the common knowledge that excessive alcohol consumption can cause problems with coordination, balance, and mental agility, a law enforcement officer's testimony about a defendant's coordination, balance, and mental agility problems during these FSTs is considered lay witness opinion testimony under rule 701. See McRae v. State, 2004 WL 2749539, *4 (Tex.App.-Houston [1st Dist.] Dec. 2, 2004, no pet. h.) (op. on reh'g); Smith v. State, 65 S.W.3d 332, 347 (Tex.App.-Waco 2001, no pet.). Depending on circumstances, however, the use of words such as "clues," "certified," "pass," and "fail" may give the officer's lay witness testimony an "aura of scientific validity"-implying reliability and changing the testimony into expert testimony. See State v. Meador, 674 So.2d 826, 833 (Fla.Dist.Ct.App.) (layperson's references to field sobriety "exercises" using terms such as "test," "pass," "fail," or "points" creates potential for enhancing significance of layperson's observations by giving them "aura of scientific validity"), rev. denied, 686 So.2d 580 (Fla. 1996); U.S. v. Horn, 185 F. Supp. 2d 530, 559-61 (D. Md. 2002) (during testimony concerning FSTs, layperson's use of "technical terminology" such as "number of standardized clues" or use of terms such as "pass/fail" or "test" when such testimony cannot be shown to have resulted from reliable methodology unfairly cloaks it with unearned credibility); but see McRae, 2004 WL 2749539, *4 (use of terms "standardized clues," "test" or "divided attention" does not automatically change lay testimony into expert testimony). Although a lay witness may also testify as an expert, to do so he must be qualified by knowledge, skill, experience, training, or education and his testimony must be based on facts and data that are of a type reasonably relied upon by experts in the field. See Tex. Rs. Evid. 702, 703; Osbourn v. State, 92 S.W.3d 531, 535 (Tex.Crim.App. 2002). It is incumbent upon the trial judge, as "gatekeeper," to ensure a witness is qualified as an expert and his testimony is reliable. See Sexton v. State, 93 S.W.3d 96, 99-100 (Tex.Crim.App. 2002); Henderson v. State, 77 S.W.3d 321, 324 (Tex.App.-Fort Worth 2002, no pet.). In determining the reliability of the expert's testimony, the trial judge should consider such factors as (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community; (2) the existence of literature supporting or rejecting the underlying scientific theory and technique; (3) the potential rate of error of the technique; (4) the availability of other experts to test and evaluate the technique; (5) the qualifications of the testifying expert; and (6) the experience and skill of the person who applied the technique. Sexton, 93 S.W.3d at 100. Applying the law to the issues at hand, we conclude the trial judge did not abuse his discretion in allowing Mitchell to testify concerning the FSTs, as the rules of evidence allow lay witness opinion testimony concerning intoxication and the one-leg stand and walk-and-turn FSTs. See McRae, 2004 WL 2749539, *4; Smith, 65 S.W.3d at 347; Emerson, 880 S.W.2d at 763. We further conclude that, while Mitchell's use of the terms "clues" and "fail" may have given his lay testimony unearned credibility, any error in allowing this portion of Mitchell's testimony was harmless. As stated, McClain presented testimony from his own expert concerning the reliability of FSTs and the differences between a certified field sobriety officer and a "lay" officer, and Mitchell himself admitted he was not certified to administer the tests, that a certified officer would be more credible, that McClain's wearing boots could have affected his performance, and that the tests could result in false positives. Moreover, the videotape of the arrest which showed Mitchell administering the tests and McClain's performance, was admitted into evidence without objection. Although we note the prosecutor did refer to Mitchell's testimony that McClain "failed" the FSTs during closing argument, we also note McClain's counsel reminded the jury that Mitchell was not a certified field sobriety officer and that he could have administered the FSTs improperly. Given the record before us, we conclude that any error in the admission of the complained-of testimony did not influence the jury or had but a slight effect. We overrule McClain's first and second points of error.Motion to Suppress
In his third point of error, citing State v. Rivenburgh, 933 S.W.2d 698, 700 (Tex.App.-San Antonio 1996, no pet.), McClain argues the trial judge erred in denying the suppression motion because Mitchell did not have probable cause to stop him. Specifically, relying on State v. Cerney, 28 S.W.3d 796 (Tex. App-Corpus Christi 2000, no pet.), State v. Arriaga, 5 S.W.3d 804 (Tex.App.-San Antonio 1999, pet. ref'd), Hernandez v. State, 983 S.W.2d 867 (Tex.App.-Austin 1998, pet. ref'd), and State v. Tarvin, 972 S.W.2d 910 (Tex.App.-Waco 1998, pet. ref'd), McClain argues that Mitchell's testimony that McClain failed to stay in a single lane was inadequate justification for the stop. We disagree. Because it is undisputed that McClain failed to stay in a single lane, we review the denial of the suppression motion de novo. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999); Stewart v. State, 22 S.W.3d 646, 648 (Tex.App.-Austin 2000, pet. ref'd). We will sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villareal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex.App.-Dallas 2002, pet. ref'd). Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 20-22 (1968); Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997). All that is required is a reasonable suspicion, supported by articulable facts and rational inferences from those facts, that the detained person actually is, has been, or will soon be engaged in criminal activity. Woods, 956 S.W.2d at 38. We examine the reasonableness of the stop in terms of the totality of the circumstances. Id.; Stewart, 22 S.W.3d at 648. Although an officer may lawfully stop and detain a person for a traffic violation, no requirement exists that a particular statute actually be violated in order to give rise to reasonable suspicion. Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992); Gajewski v. State, 944 S.W.2d 450, 452 (Tex.App.-Houston [14th Dist.] 1997, no pet.). Applying the relevant law to the case at hand, we conclude the trial judge did not err in denying McClain's suppression motion. Although McClain argues the issue is whether Mitchell had probable cause to stop him, the issue is whether he had reasonable suspicion. Woods, 956 S.W.2d at 35. Rivenburgh, upon which McClain relies in support for his contention that the issue is one of probable cause, is distinguishable. In Rivenburgh, the arresting officer testified he stopped Rivenburgh for the offense of disorderly conduct after observing her make a vulgar gesture and mouth an obscenity at another person. Rivenburgh, 933 S.W.2d at 700. However, the officer subsequently arrested Rivenburgh for DWI. Id. Rivenburgh moved to suppress the evidence seized as a result of the arrest and the trial court granted her motion. Id. On appeal, the State argued the issue was whether the officer had reasonable suspicion to stop Rivenburgh to investigate. Id. The court disagreed, finding the issue to be whether the officer had probable cause to arrest Rivenburgh. Id. The court reasoned that because the officer testified he stopped Rivenburgh for the offense of disorderly conduct, at the time of the stop the offense had either occurred or it had not-nothing was left for the officer to investigate. Id. In the case at hand, however, Mitchell testified he observed McClain almost hit another car and, because he was not sure if it was a "simple mistake" or a sign of intoxication, he decided to follow McClain. As he did, he observed McClain riding on the lane dividers and driving in two lanes. After observing McClain make a wide left turn, he decided to pull McClain over for failing to drive in a single lane and to see if he was intoxicated. Unlike the officer in Rivenburgh, Mitchell had further investigating to do. We also find distinguishable Cerney, Arriaga, Hernandez, and Tarvin-the cases upon which McClain relies in support of his position that Mitchell's testimony that McClain failed to stay in a single lane was inadequate to justify the stop. In each of those cases, the arresting officer testified that he stopped the defendant for failing to drive in a single lane, a violation of section 545.060 of the Texas Transportation Code, but arrested the appellant for DWI. Cerney, 28 S.W.3d at 799-800; Arriaga, 5 S.W.3d at 805; Hernandez, 983 S.W.2d at 868; Tarvin, 972 S.W.2d at 910-12. On appeal, the courts considered whether the officer's basis for the stop was adequate to justify the stop. Recognizing that an officer may lawfully stop a motorist who commits a traffic violation, the court in each of these cases noted that section 545.060 requires any lane changes to be made "safely." See Tex. Transp. Code Ann. § 545.060; Cerney, 28 S.W.3d at 800-01; Arriaga, 5 S.W.3d at 806; Hernandez, 983 S.W.2d at 870-71; Tarvin, 972 S.W.2d at 912. Because the arresting officers in these cases testified that the sole basis for stopping each defendant was because the defendant was weaving within a single lane, and did not testify that the weaving was erratic, unsafe, or indicative of criminal activity, the court concluded in each of these cases that no traffic violation had occurred and the arresting officer lacked reasonable suspicion to justify the stop. Cerney, 28 S.W.3d at 801; Arriaga, 5 S.W.3d at 807; Hernandez, 983 S.W.2d at 870-72; Tarvin, 972 S.W.2d at 912. Unlike the officers in those cases, however, Mitchell specifically testified in this case that he saw McClain almost hit another car. This testimony showed McClain's driving was unsafe. See Martinez v. State, 29 S.W.3d 609, 611-12 (Tex.App.-Houston [1st Dist.] 2000), pet. ref'd) (officer reasonably concluded appellant's swerving onto shoulder of busy highway in early morning hours unsafe). Mitchell also testified that McClain repeatedly rode on the lane dividers, drove in two lanes, and made a wide left turn. This testimony was corroborated by the videotape of the stop and showed McClain might be driving while intoxicated. See Grajewski, 944 S.W.2d at 452 (officer's suspicion that appellant driving while intoxicated reasonable based on appellant's weaving between traffic lanes). Given the totality of the circumstances, we conclude Mitchell had reasonable suspicion to stop McClain. We overrule McClain's third point of error.Closing Argument
In his fourth point of error, McClain contends the trial judge erred in overruling his objection to the following italicized portion of the prosecutor's rebuttal argument:What else? He gets in that intoxilyzer room and he is given the opportunity to once again say — take some field sobriety tests to see if he passes. He can prove his innocence but all he does is stand there and he does nothing. He's also asked to take a breath test. Here is the moment that he can take the breath test, prove his innocence . . . does he do it? No, he refuses it. He talked about constitutional God-given rights. You know what, there is no constitutional right to refuse a breath test. It just doesn't exist. In fact, the law does not reward people that hide evidence. The law says you can use that against him to find him guilty. That's why they take your license for 180 days. That's why they say in these trials it can be used for any reason, including finding him guilty. You can use that against him. It's not like his Fifth Amendment right not to testify because we do not want to reward people that hide evidence from you. If he was truly innocent, if he hadn't been drinking that much, then why didn't he take the breath test? Why did he refuse it at the end?McClain's objection was that the prosecutor was improperly stating McClain "ha[d] to prove his innocence." He contends now however, that the prosecutor's argument violated the Fifth Amendment guarantee against self-incrimination and Article 1, section 10 of the Texas Constitution because it was an improper comment on his failure to testify and right to not offer evidence against himself. See U.S. Const. amend. V; Tex. Const. art. 1, § 10. As the State responds, though, McClain's complaint on appeal does not comport with his objection at trial and thus he has waived any error. See Tex.R.App.P. 33.1(a); Drew v. State, 76 S.W.3d 436, 462 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd)). We overrule McClain's fourth point of error. We affirm the trial court's judgment.