### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00710- CR

Da vid Al an P r ic e , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY NO. 61330 5, HO NORAB LE DAVID F. CRAIN, JUDGE PRESI DING

M E M O R

A N D U M O P I N I O N Appellant Da

vid Price wa s convicted by a jury of driving while intox icated, a nd sentenc ed by

the t ri al co u rt to one hundre d eig hty day s’ conf

inement and a

$2,000 fine. See T e x. Pen. Code Ann. § 49.04 (West 2003). His confine ment and $1,000 of the fine wer e probated for two y ear s. I n his sole issue, he ar g ues that the trial court e rre d by admitting evide nce that the horizontal g a ze ny sta g mus te st w a s a dmi nis te re d. We w ill a ff ir m th e jud g me nt.
BACK GR OUND At approximately

12:48 a.m. on May

25, 2002, Austin Pol ice Depar tment office r Michae l Morg ovnik observed a ppellant drivi n g a re d truck without its headlig hts on at the intersec ti on of F ourth and L avac a Stree ts in downtown Austin. Morgovnik pulled up behind appellant, turne d on h i s o v erhe ad lig hts, and “blasted [his] air horn” and siren “ a fe w times.”Th e DWI e nf or c e me nt un its are c omp ri se d o f A PD o ff ic e rs wh o f

oc us on makin g tr a ff

ic 1 stops to detect individuals who ar e d ri v i n g while intox icated a nd assisting with traf

fic stops by a dmi nis te ri ngfi e ld s ob ri e ty te sts so that ot

he r o ff ic e rs may re sp on d to dif

fe re nt ty pe s of p oli c e c a lls
. 2 Morg ovnik testified that appellant kept driving while M org ovnik “kept blasting [his] air horn a nd sir e n s o th a t he wo uld

kn owIwa s b e hin d him with my lig hts on .” Ap pe lla nt d ro ve a pp ro xima te ly “two full city

blocks in downtown Austin” bef ore he finally

stopped. Morg ovnik testified that he appr oache d appellant to a sk for his driver ’s license and insurance , but appellant “a ppear ed kind of out of it” a nd “did n ’t seem to under stand exactly what Iwas a sking him for .” Morg ovnik stated that he ha d to ask appe llant for his lice nse and insura nce three or four

times before appellant c omplied. Morg ovnik asked a ppellant wher e he had bee n that night, a nd when a

ppellant fa ced Mor g ovnik to respond that he w as co ming f rom a steakhouse on Colorado Street, Morg ovnik “detec ted a strong odor of alc ohol on [ appellant’ s] breath.” Appe llant admitted that he had c onsumed two g lasses of wine
.

Mo rg ov nik c a lle d for a DWI e nf or c e me nt uni t, but no ne we re a va ila ble
. I n r e sp on se 1 to further questioning, a

ppellant told Morg ovnik th at h e bega n drinking around midnig ht and had
con s u m ed his last drink “just a minute ag o.” Althoug h he had pr eviously told Morgovnik that he had consume d two g lasses of wine , a fe w minutes later Morgovnik asked hi m ag ain, and a ppellant responde d that he had consumed three or four drinks. Morg ovnik testified that appellant “ seeme d very depre ssed or ve ry

—kind of sedate , dazed, I g uess y ou’d say . He ha d a strong odor of a lcohol on his breath. His spee ch wa s very slurred a nd mumbled. And he wa s swaying just standing there talking w ith me.” Morg ovnik emphasized to the j ury that appellant “didn’t appea r to be func tioning
as a nor mal person would nor

mally function.”3 Mo rg ov nik

the n te sti fi e d r e g ard inga

pp e lla nt’ s p e rf or m a n c e o f t h e f i e l d s o b r i e t y te sts
. Spe c if ic a l l y , h e t e s t i f

i e d t h a ta p p e l l an t“ h a d

a v e r y d i f f i c u l tt i m e u n d e r s t an d i n g m y i n s t r u c t i o ns , which we re to foll o w t h e ti p of my fing er w ith his ey eballs and not move his hea d. He c ouldn’t g rasp that f

or quite some time.” As Mor g ovnik “che cked f or equal trac king on both e y es,” he saw that appellant’ s ey es “w ere bouncing as they moved from side to side, which is the first clue .” The n, Morg ovnik “took it to max imum deviation and held it out there. And his ey es we re bounc ing a round on both sides. And then I

just took it a littl e bit f

rom cente r. And his e y es just kind of bounced f rom cente r, which is six of the six clues Iwas looking for.” Ba s ed o n this, Morgovnik c oncluded that
a pp e lla nt h a d c on su me d “ a

hig h le ve l of a lc oh ol. ” Mo rg ov nik a lso de sc ri be d a

pp e lla nt’ s d if fi c ult y in p e rf or min g the “ wa lk a

nd tur n” and “ on e le g sta

nd ” te sts . B a se d on the re su lts of the thr e e te sts , the strong odor of a lcohol on appellant’ s breath, appellant’s disorientation, inc o n s i s t ency in the amount of alc ohol appellant admitted consuming in v arious ti me per iods, and his slurred spee ch, Morg ovnik concluded that appellant was intox icated. Appellant was arr ested but declined to give a bre ath sample.

A t tr ia l, a p p e ll an t te s ti f

ie d th a t th e n ig h t h e w a s s to p p e d , h e w a s in ti mi dated by Mo rg ov nik , w a s “ e xtre me ly ne rv ou s” a

bout th e effe c t of

an a rr e st o n h is c are e r, and

fe lt that hi s “whole life was g oing to c ome cra shing down.” He did not believe that he w as intox icated that night or that he ha d sway ed while talkingto Morg ovnik.

The jury found appe llan t gu i l ty

of driving while intox icated, a nd the trial cour

t
se nte nc e d h im t o o ne hund re d e ig ht y

da y s’ c on fi ne me nt a

nd a $2 ,0 00 fi ne bu t pr ob a te d h is confine ment and $1,000 of the fine for two y ear s. Se e id
.4 DI SCU SSIO N I n his sole issue, appellant complains that the c ourt err ed in admitting Morg ovnik’s testimony beca use t h er e wa s insufficient evide nce that he was qua lified to g ive expert testimony reg ardingthe horizontal g aze ny stag mus test. A trial cour t has broad disc retion in dec iding whe ther
a witness qualifies as a

n expert, Ste rli ng v . S

tat e , 800 S.W .2d 513, 521 (Tex. Crim. App. 1990), and its ruling on the a dmissibi lity of scientific expert testimony is revie wed for an abuse of discr etion. Ru sse au v . S

tat e , 171 S.W .3d 871, 881 (Tex. Crim. App. 2005). Field sobrie ty

tests do not measure a lcohol con c e ntr a ti o n b ut i n s te a d

r e f le c t t h e deg ree to w hich the subject’s normal mental or phy sical fa culties are impaired by an intox icant. Do uth itt
v . S t a te , 1 2 7 S
. W
. 3 d

3 2 7 , 3 3 7 (T ex . Ap p . —

Au s t i n 2 0 0 4 , n o p et
. ) ( ci t i n g Em e rso n v . S tat e , 880 S.W .2d 759, 769 (Tex. Crim. App. 1994)). Ny stag mus is defined as a n “involuntary

rapid oscillation
o f th e e y e b a ll s in a h o r iz o n ta l, v e rti c a l, o r r o ta r y d ir e c tion.” Emerson , 880 S.W .2d at 765 (c iting R. B e r k o w , e d
. , T h e M e r c k M an u a l o f D i a g n o s i s an d T h e r a p y 1 4 2 9 ( 1 9 9 2 ) )
. H o r i z o n t a l g a ze ny sta g mus (H GN ) i s a

va ri e ty of ny sta g mus that oc c ur s w he n a n in div idu al’ s e y e s a

re de viate d to the later al extreme. Id . Sm oo th purs uit e y e mov e me nts are “ slo w, c on jug a te mov e me nts that e na ble the ey es to maintain a c lear view of a

n object moving ac ro ss the visual field.” Id . The e ffe ct of alcohol on ny stag mus, specific ally HGN, is we ll-documented. Id
. at 766. Consumpti on of alc ohol has also been f

ound to effe ct smooth pursuit. Id
. Howeve r, ny stag mus may also be c aused by

fac tors other than a lcohol, such as other drug s, neurolog ical disorder s, or bra in damag e. Id
. HGN test e vidence is sufficiently reliable to be admitted as a n indicator of intox ication. Emerson , 880 S.W .2d at 768-69. A wit ness qualified by knowledg e, skill, ex perie nce,Mo rg ov nik e xpla ine d th a t “ [t]he re ’s a ba sic le ve l of c e rt if ic a tio n. An d y ou

c an d o th ir

ty 2 tests and record them all and send it in for an additional level. And I never g ot around to doing that within the six -month window.” Thus, he completed the basic cer tification proce ss to administ er the HGN test, but did not complete a dditional procedur es in order to be ce rtified as a

prac titioner. 5 training , or educ ation may g ive an opinion or other wise testify

to scient i fi c, tec hnical, or othe r specia liz ed knowledg e if it will assist the trier of fa ct to understand the evidenc e or determine a fac t issue. Tex. R. Evi d. 702. Although a police off

icer seekingto testify

about a def

endant’ s perf orman c e o n an H GN te s t mu s t b e qu a li f ie d a s an e xp e rt in th e te s t’ s a d mi n is tr a tion and technique, Emerson , 880 S.W .2d at 769, it is not necessar y that he be cer

tified by the State of Te x as if he i s q u al i fi ed by

other tra ining or

experience
. Se e Sm ith v . S tate , 6 5 S. W. 3 d

3 3 2 , 3 4 4 ( T e x. Ap p. —Wa c o 2 00 1, no pe t.) ; Ke rr v . S tat e , 921 S.W .2d 498, 502 (Tex. App.—For t Worth 1996, no pet.). Morg ovnik testi fied that he was not ce rtified as a prac titioner for purpose s of administration of the HGN test but that he had bee n an APD off icer for six y ear s and wa s “ce rtified” in H GN te sti ngand

a s an in toxil y z er ope ra tor
. At the po lic e a c a de my , h e wa s “ tr a ine d in 2
s ta n d ar d ized f

ie ld s o b r ie ty te s ts a s it

r e late s to D WI

e n f o r c e me n t, s p e c if

ic a ll y h o r iz o n ta l g a ze ny stag mus,” as we ll as the “wa lk-and-tur n test and the one- leg -stand test.” H e stated that he believe d he ha d “ a c ou ple of c e rt if ic a te s” a s a

re su lt o f h is tra ini ngand that he a dmi nis te re d fi e ld so br ie ty te sts as par t of his normal DWIenfor ceme nt proce dures. The rec ord re flec ts that, in his six y ear s as an of fi c e r, Mo rg ov nik

ha s in ve sti g a te d “ a

c ou ple tho us and ” of ind ivi du a ls fo r D WI , a nd ha s p e rs on a lly
arr e ste d a pp rox im ate ly thr e e or

fo ur hund re d p e op le fo r D WI . Within the la st y e ar b e fo re his6

testimony , Morg ovnik had taken “ a re fr es h er course on the field sobriety tests, espec ially

the horizontal ga ze ny stag mus,” in order to make sure he re mained cur rent on his training
. Ba sed on this rec ord, we hold t h at t h e trial c ourt did not abuse its discretion by allowing Morg ovnik to testify about the HGNtest. See Te x. R. E vid . 7 02 ; se e als o S mi th , 65 S.W .3d
a t 34 4; Ke rr , 921 S.W .2d at 502. We overr ule appe llant’s sole issue.
CO NC LU SION Havingoverr

uled appe llant’s issue, we a ffirm the judg ment.

__________________________________________ W. Kenneth L aw, Chief Justice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med Filed: June 23, 2006 Do No t Pu

bli sh