Opinion
No. 04-15-00247-CR
03-09-2016
Cody Hinton SPICER, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 6, Bexar County, Texas
Trial Court No. 442082
Honorable Wayne A. Christian, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Cody Hinton Spicer appeals his conviction for driving while intoxicated. He argues the trial court erred by admitting testimony about an improperly conducted field sobriety test and by failing to instruct the jury about whether it may consider that testimony. Spicer also argues the arresting officer lacked reasonable suspicion to stop his car and failed to give him warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). We affirm the trial court's judgment.
PROCEDURAL BACKGROUND
Officer Kevin Rounds stopped Spicer's car after observing Spicer's driving. Once stopped, Officer Rounds asked Spicer several questions, and then conducted a horizontal gaze nystagmus (HGN) test for clues about whether he was intoxicated. After Spicer refused to take other field sobriety tests, Officer Rounds arrested him for driving while intoxicated. The State charged Spicer with operating a motor vehicle in a public place while intoxicated. Spicer pled not guilty and the case proceeded to a jury trial. Officer Rounds testified for the State, and the trial court admitted a video recording of the traffic stop into evidence. For the defense, an expert witness testified Officer Rounds improperly conducted the HGN test. The jury found Spicer guilty and the trial court imposed punishment, suspended his punishment, and placed him on probation. Spicer now appeals.
TESTIMONY ABOUT THE HGN TEST
At trial, Officer Rounds testified he conducted the HGN test and observed six out of six clues of intoxication. Spicer contends the trial court erred by admitting the testimony because Officer Rounds failed to properly administer the test. The State responds the trial court did not err by admitting Officer Rounds's testimony and that any potential error was harmless. Assuming without deciding the trial court erred, we must disregard any non-constitutional error that does not affect substantial rights. See TEX. R. APP. P. 44.2(a), (b); see also McRae v. State, 152 S.W.3d 739, 744 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd) (analyzing the improper admission of HGN test results when an officer incorrectly administered the test as non-constitutional error). In determining whether the admission of expert witness testimony based on an improperly conducted HGN test affects substantial rights, we consider whether the record provides "fair assurance that the error did not influence the jury or had but a slight effect." McRae, 152 S.W.3d at 744. We examine the record as a whole, including other evidence supporting the verdict viewed in connection with other evidence admitted at trial, jury instructions, the parties' theories, closing arguments, and voir dire, if applicable. Id. "We should also consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert." Id.
In determining whether the erroneous admission of testimony about HGN test results is harmful, courts have considered other evidence of intoxication, such as evidence that the defendant admits to consuming alcohol before driving; the defendant's eyes are bloodshot; a strong odor of alcohol is on the defendant's breath or is coming from the defendant's vehicle; the defendant refuses to take field sobriety tests; the defendant was slow in responding to the officer's instructions; and the defendant committed traffic offenses indicating the defendant's judgment was impaired. See, e.g., Hartman v. State, 198 S.W.3d 829, 840 (Tex. App.—Corpus Christi 2006, pet. struck); McRae, 152 S.W.3d at 744-45; Ellis v. State, 86 S.W.3d 759, 762 (Tex. App.—Waco 2002, pet. ref'd).
During voir dire, one venire person mentioned field sobriety tests could help determine whether someone was intoxicated, and the State briefly and generally discussed field sobriety tests:
Field sobriety test, correct. [Officers] are trained and certified in administering tests and things like that. So they have their own observations and things like that. And then they all also have the special training -- things that we don't have -- to detect those sort of things.The State asked the venire panel about the types of evidence other than field sobriety tests that could prove intoxication. The other types of evidence mentioned during voir dire included video recordings showing someone's conduct and witness testimony about observations from their senses, including sight and smell.
In the State's opening statement, the State explained that Officer Rounds observed Spicer's car committing several traffic violations, stopped Spicer's car, and when Spicer rolled down the window, smelled a strong odor of alcohol and saw that Spicer's eyes were red and bloodshot. The State mentioned Spicer refused to do other field sobriety tests. Although the State explained Officer Rounds would testify to "all of the observations he made that night," the State did not mention the results of the HGN test. Defense counsel's opening statement raised a defensive theory that field sobriety tests must be properly conducted.
Officer Rounds testified he observed Spicer commit several traffic offenses indicating loss of normal use of physical or mental faculties. The offenses included speeding at approximately seventy-eight miles per hour in a sixty-five mile-per-hour zone, failing to sufficiently signal his intent to change lanes, weaving out of his lane and coming close to a concrete barrier on the road, and following another car too closely. He also testified he smelled a strong odor of alcohol on Spicer's breath and in Spicer's car and saw that Spicer's eyes were red and bloodshot. He further testified Spicer acknowledged he had been drinking beer before driving and Spicer refused to take any other field sobriety tests. Approximately one-third of Officer Rounds's testimony on direct examination was about the HGN test, his expertise and training conducting the test, and the clues he observed. The trial court also admitted a video recording of the traffic stop into evidence.
During cross-examination, Officer Rounds testified that, aside from the traffic violations he observed, Spicer did not commit any other traffic violations indicating Spicer was driving while intoxicated. He also stated there are numerous possible explanations for having bloodshot eyes, including allergies, lack of sleep, and cigarette smoke, but he did not ask Spicer about these possibilities for his bloodshot eyes. Officer Rounds also stated it is not illegal for someone to smell like alcohol, but testified he was able to smell alcohol from just outside the passenger side of Spicer's car when Spicer rolled down the window. Defense counsel questioned Officer Rounds extensively about the HGN test and whether he properly conducted the test. The defense also had an expert witness testify that Officer Rounds incorrectly conducted the HGN test.
The trial court instructed the jury that it may convict Spicer if the "jurors [we]re satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence." Furthermore, in its closing argument, the State argued the evidence showing Spicer was intoxicated included Officer Rounds's testimony about Spicer's traffic violations, the odor of alcohol, Spicer's bloodshot eyes, his admission that he admitted to drinking before driving, and his refusal to perform the other field sobriety tests. The State did not mention Officer Rounds's testimony about the HGN test in its closing argument. Defense counsel's primary theory in closing argument was that Officer Rounds was simply looking to make an arrest that evening, and defense counsel mentioned there was evidence that Officer Rounds failed to correctly perform the HGN test.
Although approximately one-third of Officer Rounds's testimony concerned the HGN test and Officer Rounds testified as an expert in conducting the HGN test, the State did not mention Officer Rounds's HGN test in its opening statement or closing argument. And while Officer Rounds's failure to ask Spicer about other possibilities for Spicer's bloodshot eyes slightly discredited Office Rounds's testimony that Spicer's bloodshot eyes was an indication of intoxication, the State emphasized in its opening statement and closing argument other evidence of Spicer's intoxication, including Spicer's traffic violations, the odor of alcohol in his car and on his breath, his admission to drinking before driving, and his refusal to take other field sobriety tests. This testimony was not disputed or discredited as proof that Spicer was intoxicated. The jury was also able to view the video recording, which showed Spicer's driving and his statements to Officer Rounds, in connection with Officer Rounds's testimony. Moreover, the jury was made aware during voir dire of various types of evidence other than field sobriety tests that could prove intoxication, and the jury was instructed to consider all of the evidence, not just the expert witness testimony, in determining whether the State had overcome the presumption of innocence. Having examined the record as a whole, we hold the record provides fair assurance that the admission of Officer Rounds's testimony about the HGN test did not influence the jury or had but a slight effect. See McRae, 152 S.W.3d at 744. Therefore, even if the trial court erred by admitting Officer Rounds's testimony about the HGN test, we must disregard the non-constitutional error because it did not affect Spicer's substantial rights. See TEX. R. APP. P. 44.2(b).
JURY INSTRUCTION
Spicer asks that we approve a jury instruction, which the Supreme Court of Illinois approved in an unpublished order, that the jury must disregard testimony about an HGN test unless it finds that the officer properly conducted the test. Testimony about an HGN test is scientific evidence, the admissibility of which is governed by Texas Rule of Evidence 702. TEX. R. EVID. 702; accord Emerson v. State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994). "Under Rule of Evidence 702, the trial court serves as a gatekeeper and determines whether the proffered scientific evidence is sufficiently reliable and relevant to aid the jury." Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002). Whether an expert's "technique applying the theory is valid" is a determination a trial court makes when determining "whether the proffered scientific evidence is sufficiently reliable and relevant to aid the jury." See id. at 99-100. Thus, it is the trial court's role, and not the jury's, to determine whether an expert has used a valid technique to apply a scientific theory. See id.
Spicer does not include the approved instruction in his brief or provide an appropriate citation to the case in which the Supreme Court of Illinois approved the order. --------
Furthermore, Spicer's proposed instruction is not required by article 38.22(a) of the Texas Code of Criminal Procedure, which provides:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West Supp. 2015). Spicer does not cite to any Texas or U.S. constitutional or statutory provision prohibiting an officer from improperly conducting HGN tests. Therefore, we hold the trial court did not err by denying Spicer's request that the jury be instructed in accordance with the Supreme Court of Illinois's unpublished order.
WAIVER
In his remaining issues, Spicer argues Officer Rounds's testimony was inadmissible because he lacked probable cause and reasonable suspicion to stop his car and failed to give him proper warnings under Miranda v. Arizona. The State argues Spicer waived these issues. To preserve error that an officer illegally obtained evidence, "a defendant must either file a motion to suppress and obtain a ruling on the motion or timely object when the State offers the evidence at trial." Ratliff v. State, 320 S.W.3d 857, 860 (Tex. App.—Fort Worth 2010, pet. ref'd); accord TEX. R. APP. P. 33.1(a). Although Spicer filed a motion to suppress, the record does not contain a ruling on the motion. At trial, Spicer's only objection to Officer Rounds's testimony was that he failed to properly conduct the HGN test. Spicer did not object to Officer Rounds's testimony at trial on the grounds that Officer Rounds improperly detained Spicer or subjected him to custodial interrogation without Miranda warnings. Therefore, we hold Spicer did not preserve these issues for appeal.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice DO NOT PUBLISH