Opinion filed July 15 , 2010



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 08

- 00243

- CR

__________ TYRONE LAMONT JOHNSON , Appellant

V.

STATE OF TEXAS , Appellee

On Appeal from the 91st District Court

Eastland County, Texas
Trial Court Cause No. 20,900

M E M O R A N D U M O P I N I O N
The jury convicted Tyrone Lamont Johnson of the offense of felony driving while intoxicated. Upon appellant‟s plea of true to an enhancement allegation, the trial court assessed punishment at confinement for ten years. We affirm.
A ppella nt presents tw o issues. In the first, he contends that the trial court erred in failing
to conduct a Kelly

- Daubert hearing 1 on the admissibility of the horizontal gaze nystagmus (HGN) test, the field sobriety tests, and the portable breath test. In the second issue, a ppellant

1 Daubert v. Merrell Dow Pharm s

. , Inc. , 509 U.S. 579 (1993); Kelly v. State , 824 S.W.2d 568 (Tex. Crim. App. 1992).2

complains that the trial court erred in admitting evidence regarding these tests because the State failed to show by clear and convincing evidence that such evidence was reliable and relevant
evidence of appellant‟s intoxication.
The record sho ws that , after the time period prescribed by the trial court for filing pretrial
motions and after appearing and announcing that he had no pretrial motions, appellant filed pretrial motion s to suppress evidence of the HGN test
, the field sobriety tests, an d the portable
breath test. In the motions, appellant challenged the admissibility of the evidence relating to
these tests under T EX

. R. E VID

. 702, which provides for the admission of expert testimony when scientific, technical, or specialized knowledge w ill assist the trier of fact. Though appellant did not bring these motions to the attention of the trial court prior to trial, he objected and requested a hearing outside the jury‟s presence when the St ate offered a DVD of appel lant‟s traffic stop.
The tr ial court excused the jury and discussed the matter with the attorneys outside the jury‟s

presence

. Ultimately, the trial court expressed frustration with appellant‟s counsel for failing to bring this matter to the trial court‟s attention before the jury was seated, but the court
nevertheless heard arguments from the attorneys and took a recess to review the DVD outside the presence of the jury. Upon reconvening, the trial court overruled appellant‟s objections and
admitted the DVD into evidence.
W hen s cientific evidence is offered, Rule 702 requires that a trial court act as a gatekeeper to ensure that such evidence is relevant and reliable. Daubert , 509 U.S. at 589; Hernandez v. State , 116 S.W.3d 2 6 (Tex. Crim. App. 2003); Kelly , 824 S.W.2d at 57 3 . The proponent of the evidence must prov e by clear and convincing evidence , outside the presence of the jury, that the evidence is reliable, which requires proof that the underlying scientific theory is valid, that the technique applying the theory is v alid, and that the technique was properly applied on the occasion in question. Kelly , 824 S.W.2d at 573. However , a trial court is “not required to

re

- invent the scientific wheel in every trial

. ” Hernandez , 116 S.W.3d at 28

- 29. Once the reliability of a scientific theory has been determin ed by a court, other courts may take judicial
notice of its validity and need not conduct another adversarial gatekeeping hearing. Id. at 29. With respect to the first and second Kelly requirements, t he Texas Court of Criminal Appeals has taken judicial notice of the validity of both the scientific theory of HGN and the standard technique used to administer the HGN test

. Emerson v. State , 880 S.W.2d 759, 768

- 69 (Tex. Crim. App. 1994). Thus, the trial c ourt need not have revisited those issues.3

As for the third Kelly requirement, a ny error in failing to hold a hearing outside the jury‟s presence was harmless under T EX

. R. A PP

. P. 44.2(b) because the testimony of Trooper Tim Pitts, the DPS trooper who a dministered the HGN test to appellant, satisfied the third Kelly requirement and proved that the HGN evidence was reliable in this case. See J ackson v. State
, 17 S.W.3d 664 , 672 (Tex. Crim. App. 2000) (holding that, even though the trial court refused to hold a hearing outside the jury‟s presence and abandoned its gatekeeping function with respect to
the last two Kelly requirements, “the error was harmless because the State‟s DNA evidence was in fact reliable”). Trooper Pitts testified that he was certifi ed to administer the HGN test. He also testified regarding his training and experience in conducting the HGN test and explained to the jury what nystagmus is and how the test works. Trooper Pitts then testified that he attempted
to conduct the HGN test b ut that he could not get valid results because appellant refused to follow the trooper‟s instructions. As stated in Jackson , “ Because the court‟s failure to hold a hearing outside the jury ‟ s presence did not result in the admission of unreliable evidence, the
error did not have „ a substantial and injurious effect or in fluence in determining the jury‟s
verdict. ‟” Id. at 672 (quoting King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). Following Jackson , w e hold that any error in failing to conduct a more thorough Kelly

- Daubert hearing outside the jury‟s presence was harmless because the HGN evidence was shown to be
reliable and admissible. T he trial court did not abuse its discretion in admitting evidence related
to the HGN t est. Appellan t also complains of the lack of a hearing and the admission of evidence regarding the standard, physical field sobriety tests that he performed. The record shows that appellant performed the walk

- and

- turn test and the one

- leg stand test, w hich are both
standardized field sobriety tests in Texas. An officer‟s testimony about a person‟s coordination, balance, and mental agility exhibited during the walk

- and

- turn and the one

- leg stand tests are observations grounded in common knowledge. Plou ff v. State , 192 S.W.3d 213, 223 (Tex. App.

— Houston [14th Dist.] 2006, no pet.)

. As such, the officer‟s testimony constitutes lay testimony under T EX

. R. E VID

. 701, rather than expert testimony under Rule 702. Id. Trooper Pitts‟s testimony regarding the walk

- and

- turn test and the one

- leg stand test was lay testimony,

not expert scientific or technical evidence . Thus
, the trial court did not err in failing to hold a Kelly

- Daubert hearing regarding the admissibility of these tests . Evidence of appellant‟ s performance on these standard ized field sobriety tests was properly admitted.4

Next, we address the lack of a hearing and the admission of evidence regarding the portable breath test . The record shows that, although appellant filed a pretrial motion t o suppress any evidence of the portable breath test based upon Rule 702, appellant did not bring the motion
to the attention of the trial court and did not object during trial to the admission of evidence relating to the portable breath test. The record shows that appellant‟s counsel objected as follows
at trial: I am requesting that, prior to any mention of the HGN, any prior testimony to the wal k

- and

- turn, and any testimony of the one

- leg stand, in fact, be done outside the presence of the jury so that the court, as the gatekeeper, can determine the adm issibility of that information.
Appellant‟s counsel made no mention of the portable breath te st in her objections or her request for the trial court to perform its gatekeeping function. Thus, with respect to the portable breath
test, appellant‟s issue s have not been preserved for review. T EX

. R. A PP

. P. 33.1(a) ; Harnett v.
State , 38 S.W.3d 650, 657 (Tex. App.

— Austin 2000, pet. ref‟d)

. W e note that Trooper Pitts testified that he had been trained in the use of the portable breath test, that he administered the test to appellant, and that appellant failed. Trooper Pitts did not testify as to the specific results of the portable breath test or give any testimony regarding the quantity of alcohol present in appellant‟s breath. Appe llant‟s issues are overruled

. T he judgment of the trial court is affirmed.

JIM R. WRIGHT
CHIEF JUS TICE

July 15 , 2010 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J.