## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 14 - 00267 - CR

SARAH JEAN CLEMENT APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM COUNTY CRIMINAL COURT NO. 7 OF TARRA NT COUNTY

TRIAL COURT NO. 1255 151

---------- 

### OPINION

--- ------- I. I NTRODUCTION Appellant Sarah Jean Clement appeals her conviction for driving while intoxicated. A jury found her guilty of the offense , and the trial court sentenced her to ninety days ’ confinement and assessed a $750 fine , suspended impositio n of the sentence , and placed Clement on community supervision for eighteen months. In four issues, Clement argues that the trial court erred by compelling2

her to submit to a field

- sobriety test in front of the jury, by overruling her objection to the pro secutor’s “scientific statements” that were made in front of the jury, by overruling her objection to the arresting officer’s testimony about his physica l ailments, and by denying her motion for new trial. For the reasons set forth below, we will affirm t he trial court’s judgment. II. F ACTUAL B ACKGROUND At approximately 1:30 a.m. on September 23, 2011 , a motorist named Mic h ael Cohen was traveling wes tbound on I

- 20 in Fort Worth when he observed a pickup truck driving erratically. Cohen was a member of “ Code Blue,” a volunteer citizen’s organization that reports crime to the police. After following the pickup for a distance and determining that the erratic driving was not an isolated instance, Cohen called 9

- 1

- 1. A recording of this call was adm itted in to evidence and played for the jury. Cohen testified that he followed behind the pickup, report ed its location, and recite d that the pickup was slowing down to twenty miles per hour and then speeding up to travel fifty miles per hour ; ha d hit the highway embankment or guard rail , causing sparks to fly; and after exiting the highway , was pulling U

- turns on the roadway

. After police officers had stopped the pickup, Cohen was directed by dispatch to stop at the scene ; he d id so , and he provide d officers with his contact information

. Fort Worth Police Officer Dale McCoy testified that on September 23, 2011 , at approximately 1:30 a.m. , he was on patrol when the dispatcher reported a possible DWI ne ar Officer McCoy’s location. When Officer McCoy arrived at3

th e scene, another Fort Worth police officer had already pulled over the suspected drunk driver for a defective tail lamp. When Officer McCoy approached the pickup, Clement was inside. Cohen was at the scene as well , and the other officer was speaking to C ohen. When Officer McCoy asked Clement to exit the vehi cle, her pants were unzipped. Officer McCoy smelled an odor of alcohol on Clement ’s breath. Officer McCoy had Clement perform field

sobriety tests , and the results were that she exhibited six clues on the HGN test, three clues on the walk

- and

- turn test, and zero clu es on the one

- leg

- stand test. Officer McCoy testified that under the totality of the circumstances he observed at the scene, he determined that Clement was intoxicated. A VHS tape recor ding of Officer McCoy’s roadside administration of the field

- sobriety tests on Clement , of Clement’s transport to jail, and of Officer Martinez’s administration of field

- sobriety tests on Clement in the I ntoxilyzer room at the jail , was admitted into evi de nce an d played for the jury. On the tape, when Officer McCoy asks Clement whether she has been drinking, she says that she drank two beers. On the tape of the events in the I ntoxilyzer room, Clement agrees to submit a breath specimen, but ultimately no b reath specimen was obtained

. At trial, Officer McCoy testified that he had mistakenly checked the box on his report that indicated Clement had resting nystagmus; persons with resting nystagmus are not candidates for the HGN test. He agreed that he did n ot ask Clement the required predicate questions prior to performing the HGN test on4

her. He also testified that despite Cohen’s report during his 9

- 1

- 1 call that the pickup had hit an embankment or a guardrail, there was no damage to Clement ’s vehicle and ag reed that this was “bizarre.” He also agreed that Officer Martinez, the officer in the Intoxilyzer room with Clement, was not certified to administer field

- sobriety tests although he had administered them to Clement. And Officer McCoy agreed that he d id not tell Clement that she had the right to a blood test. Following a particular segment of cross

- examination of Officer McCoy, the State as ked for permission to “have the witness [Officer McCoy] step down and check for resting nystagmus on this defendan t.” Defense counsel objected, stating that “if she [ Clement ] had resting nystagmus in 2011 [at the time of her arrest], that doesn’t necessarily mean she has it now. That’s over three years ago.” The prosecutor responded , “If she had resting nystagmus t hree years ago, she absolutely would have it today. It’s not something tha t just goes away. It’s something that you have or you do not.” Defense counsel then asserted a Fifth

Amendment objection and object ed that neither counsel for the prosecution nor Officer McCoy w ere “qualified to talk about when someone has resting nystagmus, when it goes away, what c auses it, how long it lasts.” The trial court overruled Clement ’s objections, Officer McCoy performed an in

- court HGN test

on Clement , and he commente d that “[r]ight now she would have resting nystagmus. [ 1 ] I don’t see any resting nystagmus.”

1 This comment by Officer McCoy, taken in context, constitutes opinion testimony that if Clement had resting nystagmus in 2011, “[r]ight now she would5

Officer Martinez testified that Clement had a strong odor of alcohol on her and exhibited four of eight clues on the walk

- and

- turn test and three of four c lues

o n the one

- leg

- stand test that he administered to her at the jail in the I ntoxilyzer

room
. 2 Officer Martinez said that the “decision point” for intoxica tion on both tests was exhibiti n g two clues. Officer Martinez testified that al though Clement blew into the I ntoxilyzer twice, no breath sample was obtained from her because of her failure to blow with sufficient pressure. Officer Martinez testified that he had no doubt that Clement was intoxica ted on the night in question.

I I I. I SSUE 1: T HE I N - C OURT N YSTAGMUS T EST In her first issue, Clement argues that the trial court erred by compelling her to submit to an in

- court nystagmus test in violation of her rights under the Fifth Amendment to the United States Constitution and arti cle 1, section 10 of the T exas c onstitution and that the trial court’s error was compounded by Officer McCoy’s comment about her performance on the test

. “The privilege against self

- incrimination as contained in both the Fifth Amendment to the United States Constitution and Articl e I, § 10 of the Texas [c] onstitution protects only testimonial communications.” Adams v. State , 969 S.W.2d 106, 113 (Tex.
have restin g nystagmus”; this is the comment by Officer McCoy that Clement complains of in her second issue. Clement characterizes Officer McCoy’s “[r]ight now she would have resting nystagmus” testimony as a “comment,” presumably because it was not made in response to a question by the State.

2 Officer Martinez testified that he did not perform the HGN test on Clement because it was standard procedure not to perform the HGN test at the jail and because he wa s not qualified to perform it.6

App.

— Dallas 1998 , no pet. ) ; see also Williams v. State , 116 S.W.3d 788, 791 (Tex. Crim. App. 2003) (explaining that Fifth Amendment applies only to “testimonial communications that are incriminating” ). Consequently, requiring a defendant in a criminal case to provide a voice exemplar “does not, without more, compel him to provide a testimonial response.” Williams , 116 S.W.3d at 79 2

. R equiring a DWI defendant to recite the alphabet or count backwards does not violate the Fifth Amendment. See Gassaway v. State , 957 S.W.2d 48, 51 (Tex. Crim. App. 1997). Likewise, a video recording of a DWI suspect performing sobriety tests is not test imonial evidence under the Fifth Amendment. Miffleton v. State , 777 S.W.2d 76, 80 (Tex. Crim. App. 1989). And HGN test results constitute nontestimonial evidence. See Campbell v. State , 325 S.W.3d 223, 233 (Tex. App.

–– Fort Worth 2010, no pet.). Accordi ngly, because Officer McCoy’s in

- court nystagmus testing of Clement did not elicit testimonial communications, the testing did not implicate Clement ’s rights under the Fifth Amendment t o the United States Constitution or arti cle 1, section 10 of the Texas

c onstitution. See Gassaway , 957 S.W.2d at 51; Miffleton , 777 S.W.2d at 80

. And because Cl ement’s performance during the nystagmus testing was not testimonial in nature, neither was Officer McCoy’s comment regarding her performance. See Youens v. State , 988 S.W.2d 404, 407 (Tex. App.

— Houston [1st Dist.] 1999, no pet.) (holding that because appellant’s performance during sobriety tests was not testimonial in nature, trial court did not abuse its discretion by admitting trooper’s testimony concerning manner in which appellant7

performed sobriety tests) ; see also Campbell , 325 S.W.3d at 233

. We overrule Clement ’s first issue. IV
. I SSUE 2: T HE P ROSECUTOR ’ S S TATEMENT AND T HE O FFICER ’ S C OMMENT In her second issue, Clement complains that the trial court “ erred in overruling defense counsel’s objection to the relevance of improperly admitted scientific testimony[,]” specifically, by overruling her objections to the prosecutor’s statement in front of the jury that “if she [ Clement ] had resting nystagmus three yea rs ago, she absolutely would have it today. It’s not something that just goes away” and to Officer McCoy’s comment that if Clement had resting nystagmus in 2011, then “[r]ight now she would have resting nystagmus

. ” Because we are not prepared to hold tha t the trial court did not err, we address whether such error is harmless. 3 See Tex. R. App. P. 44.2(b). Un der r ule 44.2(b), we review nonconstitutional error to determine whether the error affected the substantial

3 An error analysis is not re quired when a harm analysis is dispositive. See State v. Ambrose , No. PD

- 0 143

- 15, 2016 WL 1696455, at *1 (Tex. Crim. App. Apr. 27, 2016) (affirming court of appeals’s decision that assumed without deciding that jury instructions were erroneous and that th en performed harm analysis); Herring v. State , 147 S.W.3d 390, 394 (Tex. Crim. App. 2004) (affirming court of appeals’s decision that assumed arguendo that trial court erred by refusing to exclude evidence of exact description of appellant’s prior crime du ring guilt

- innocence and that then performed harm analysis); see also Wooten v. State , 400 S.W.3d 601, 607 (Tex. Crim. App. 2013) (“Finding our harm analysis thus dispositive, we need not address whether the trial court did, in fact, err no t to include the instruction.”). A nd, contrary to the dissent’s assertion, Clement did not challenge the reliability of the scientific theory underlying resting nystagmus testing in the trial court. See, e.g. , Shaw v. State , 329 S.W.3d 645, 655 (Tex. App.

— Houston [14th Dist.] 2010, pet. ref’ d) (recognizing qualification, reliability, and relevance are separate requirements of expert testimony and objection as to one requirement does not preserve error as to another).8

rights of Clement. See Tex. R. App. P. 44.2(b). A su bstantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. See King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States , 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial right if we have “fair assurance that the error did not influence the jury, or had but a slight effect.” Solomon v. State , 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). In making this determination, we review the record as a whole, including any testimony or physical evidence, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with the other e vidence, the jury instructions, the State’s theory and any defensive theories, whether the State emphasized the error, closing arguments, and even voir dire if applicable. See Motilla v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Examining the r ecord as a whole, it reflects that at the close of trial , the trial court admonished the jury orally ( when it read the court’s charge to the jury) and in writing ( in the court’s charge ) to not refer to or discuss anything they had heard about Clement or th e case “other than from what you have heard from the witne ss stand during the trial.” These instructions reduced the likelihood that any error stemming from the prosecutor’s comment influenced the jury. See, e.g. , Casanova v. State , 383 S.W.3d 530, 543 ( Tex. Crim. App. 2012) (recognizing presumption on appeal that jurors follow trial court ’s instructions). And Officer9

McCoy’s “[r]ight now she would have resting nystagmus” comment, taken in
context , was fairly cryptic; the State did not ask for elab oratio n or further mention the in

- court nystagmus test during trial. The State did not mention HGN or resting nystagmus during closing argument , and defense c ounsel mentioned it only briefly

–– pointing out that three years after Officer McCoy stated in his repor t that Clement had resting n ystagmus, he claimed at trial that “i t was a mistake.” Defense counsel also mentioned in closing that Officer McCoy had conceded that he had not asked Clement the proper predicate questions before performing the HGN test on her , including whether Clement wore contacts or had head
trauma. Thus, d efense c ounsel successfully undermined the reliability of the results of the HGN test performed on Clement on the night of her arrest

–– regardless of whether the results were also invalid because Clement had resting nystagmus . Because admitted evidence undermined the results of the HGN test performed on Clement on the night of her arrest, the error alleged by Clement concerning the resting nystagmus comments was unlikely to have significa ntly influence d the jury. See Robison v. State , 461 S.W.3d 194, 201

– 02 (Tex. App.

— Houston [14th Dist.] 2 0 15, pet. ref’d ) (assuming error in exclusion of evidence and holding it harmless because other evidence that was admitted served the same purpose). Lo oking to Clement’s defensive theories, she asserted that she was not intoxicated. She pointed out that she was pulled over because her tail lamp was not working, and s he emphasized her perfect performance of the one

- leg

- stand10

test and her good performance on the walk

- and

- turn test as reflected in the State’s video of the road

- side field

- sobriety test s
. In light of Clement’s other stronger defensive theories

–– i.e., that she was not intoxicated

–– the alleged error impacting Clement’s defensive theory that sh e had resting nystagmus on the evening of her arrest likely had but a slight effect on the jury. Accord Villar r eal v. State , 453 S.W.3d 429, 440

– 41 (Tex. Crim. App. 2015) (holding , in charge

- error harm analysis , that erroneous omission of defensive instru ction was not egregious when instruction went to only alternative defense raised by defendant). And c onsidering the character of the alleged error and the nature of the evidence supporting the verdict, we note that eyewitness testimony from Cohen support s the jury’s verdict. The audio recording of Cohen’s 9

- 1

- 1 call was played for the jury , and Cohen testified in person at trial, providing the jury with the opportunity to g au ge his credibility. See Garcia v. State , 367 S.W.3d 683, 687 (Tex. Crim. App. 2 012) (recognizing that jury, as fact finder, is sole judge of witnesses ’ credibility and weight to be give n to witnesses’ testimony); Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (recognizing appellate court must defer to jury’ s resolution of co nflicts in testimony, weight of evidence, and inferences drawn from evidence)

. 4 Given the eyewitness testimony, which , if believed by the jury, established Clement’s erratic driving for an extended period

4 The dissent includes a helpful chart summarizing the conflicting evidence but f ails to defer to the jury’s resolution of the charted conflicts and fails to conduct a harm analysis using the Motilla factors. See 78 S.W.3d at 355.11

of time

— including failing to maintain her lane, sl owing down and speeding up, hitting an embankment or guardrail, and making multiple U

- turns at 1:30 a.m.

— and Clement’s own videotaped statement that she had consumed two beers, the character of the alleged error juxtaposed with the evidence of guilt that t he jury could have believed provides us with assurance that the alleged e rror did not influence the jury or had but a slight effect. See Motilla , 78 S.W.3d at 355 (explaining strong evidence of guilt may provide assurance tha t error had but slight effect) . Because, a fter reviewing the entire record, we have fair assurance that the alleged e rror did not influence the jury or had but a slight effect , we overrule Clement’s second issue. See Tex. R. App. P. 44.2(b); Solomon , 49 S.W.3d at 365.

V
. I SSUE 3: O FFICER M C C OY ’ S P HYSICAL A ILMENTS T ESTIMONY In her third issue, Clement asserts that the trial court abused its discretion by permitting Officer McCoy to testify about his own physical ailments over her relevancy obj ection. On cross

- examination, d efense c ounsel e licited testimony from Officer McCoy that performance on the field

- sobriety tests could be impacted by a performer’s physical ailments and established that Officer McCoy had not asked Clement whether she suffered from any physical limitations . On redirect of Officer McCoy, t he State pointed out that Officer McCoy had physically demons trated for Clement how she was to perform the field

- sobriety tests and then questioned Officer McCoy about his own physical ailments. Officer McCoy testified that he had l upus , a herniated disc , and sciatica.12

Evidence that is otherwise inadmissible may become admissible when a party op ens the door to such evidence. Williams v. State , 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) , cert. denied , 560 U.S. 966 (2010)

. A pa rty opens the door by leaving a false impression with the jury that invites the other side to respond. Hayden v. State , 296 S.W.3d 549, 554 ( Tex. Crim. App. 2009); Daggett v. State , 187 S.W.3d 444, 452 (Tex. Crim. App. 2005). Defense counsel’s questionin g of Officer McCoy l eft the jury with the impression that , due to the degree of physical agility and coordination required to perform the field

- sobriety tests , anyone with a physical ailment or injury would not be able to properly perform the tests

. Becau se of this false impression created concerning the physicality require d to properly perform the field

- sobriety tests , we hold that the trial court did not abuse its discretion by overruling Clement’s relevancy objection to Officer McCoy’s testimony about h is own physicial limitations. T he State cleared up the false impression by eliciting Officer McCoy ’s testimony regarding his physical ailments , which did not hinder his perform ance of ab breviated versions of the field

- sobriety tests and his performance wa s captured on video at the scene

. See Williams , 301 S.W.3d at 687 ( assuming evidence of extraneous murders was inadmissible under rule 404(b), and holding no abuse of discretion because appellant opened the door by deliberately choosing to question prosec utor about them) ; Jordy v. State , 413 S.W.3d 227, 231

– 32 (Tex. App.

— Fort Worth 2013, no pet. ) (holding trial court did not abuse its discretion by allowing State to clear up false impression13

regarding the correlation between the HGN and alcohol concentrati on)

. We overrule Clement’s third issue.

VI. I SSUE 4: D ENIAL OF M OTION FOR N EW T RIAL In her fourth issue, Clement argues that the trial court abused its discretion by denying her motion for new trial following a hearing because her right to a fair trial was substantially affected by the admission of the in

- court nystagmus test and by Officer McCoy’s comment r egarding her performance on that test. We analyzed these arguments above and held that neither the in

- court nystagmus test nor the results of that test were testimonial in nature , that they did not implicate Clement’s privilege agai nst self

- incrimination , and that the trial court did not abuse its discretion by permitting the in

- court test over Clement’s Fifth Amendment objection. Co ncerning Officer McCoy’s comment that Clement would have resting nystagmus “[r]ight now” if she had it in 2011, we held that any

error stemming from the comment was harmless. Th us, Clement’s right to a fair trial was not substantially affected by the admission of the non testimonial in

- court resting nystagmus test , by comments concerning Clement’s performance on that test, or by Officer McCoy’s comment concerning resting nystagmus

. S ee Gassaway

, 957 S.W.2d at 51. Accordingly , we hold that the trial court did not abuse it s discretion by denying Clement’s motion for new trial. See Tex. R. App. P . 21.3 (setting forth nonexhaustive list of grounds that require granting a new trial) ; Colyer v. State , 428 S.W.3d 117, 122 (Tex. Crim. App. 2014) (stating that abuse

- of

- discretion standard is used for denial of a motion for new trial); Wyatt v.14

State , 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (rejecting appellant’s argument that cumulative effect of errors at trial denied him right to a fair trial when the court had previously reject ed each of appellant’s individual arguments); see also Wright v. State , 178 S.W.3d 905, 929 (Tex. App.

— Houston [14th Dist.] 2005, pet. ref’d ) (holding that trial court did not abuse its discretion by denying hearing on motion for hearing and new trial rega rding whether in

- court demonstration was based on speculation) . We overrule Clement’s fourth issue. VII
. C ONCLUSION Having overruled each of Clement’s four issues, we affirm the trial court’s judgment. /s/ Sue Walker SUE WALKER JUSTICE PANEL: DAUPHINOT, WALKER, an d GABRIEL, JJ. DAUPHINOT, J., filed a dissenting opinion. PUBLISH DELIVERED: July 14 , 2016