Affirmed and Opinion filed November 24, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00933-CR

BRIAN BUZBY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 1895414

O P I N I O N

Appellant Brian Buzby appeals from his conviction for driving while 

intoxicated (DWI). After a jury found appellant guilty, the trial court sentenced 

him to eight days in jail. In two issues on appeal, appellant contends that the trial 

court erred in making two evidentiary rulings: (1) excluding a toxicology expert’s 

academic transcript and (2) permitting the arresting officer to correlate the results 

of appellant’s “HGN” test with a specific blood alcohol content. We affirm.
2

Background

Officer David Sokoloski of the Houston Police Department testified that on 

May 11, 2013, he was in his patrol car with his partner when he observed appellant 

appear to run a stop sign. The officers pulled appellant over and were soon joined 

by another officer, Margarito Perales. Perales has received specialized training in 

DWI investigation and was working with the HPD DWI task force that evening. 

He observed the traffic stop and stopped to see if the officers needed any 

assistance.

According to Perales, when he initially approached, he could smell alcohol 

on appellant and noticed appellant had glassy eyes and slurred speech. Appellant 

told Perales that he had been at a nearby bar and had drunk one beer about two 

hours before the traffic stop. Perales had appellant exit the vehicle and perform 

field sobriety tests. Perales described the test procedures and appellant’s 

performance of the tests in detail. He further testified that appellant exhibited six 

out of six possible clues for intoxication on the horizontal gaze nystagmus (HGN) 

test,

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three of four possible clues on the “one-leg stand” test and seven out of eight 

possible clues on the “walk and turn” test. Based on appellant’s performance on 

the tests, Perales concluded that he was intoxicated and had lost the normal use of 

his physical and mental faculties. Perales arrested appellant for DWI and 

requested he perform a breath test or provide a blood sample, but appellant refused.

A video recording of the field sobriety testing taken from Perales’s patrol car 

was played for the jury. Although some details of the testing are not discernable in 

the video, appellant can be heard missing a number and repeating a number when 

asked to count seconds. Additionally, he put his left foot in front of his right foot 

 

1 As will be explained in more detail below, Perales explained some of the specifics 

regarding how a person’s performance of the HGN test relates to their likely intoxication.
3

when asked to do the reverse. He also was unable to walk a straight line and 

appeared unsteady at times both while walking and while standing still.

After a search warrant was issued to obtain a sample of appellant’s blood, 

the sample was drawn and tested. A criminalist in the toxicology section of the

Houston Forensic Science Center, testified that she analyzed appellant’s blood 

sample and determined that his blood alcohol concentration (BAC) was 0.178—

more than twice the legal limit of 0.08—at the time the sample was taken. Using 

retrograde extrapolation, the criminalist further determined that appellant’s BAC 

would have been 0.195 to 0.230 at the time he was stopped.

The criminalist additionally testified regarding her educational and work

history, including that she has a bachelor’s of science degree from a major state 

university, had taken at least 30 hours of chemistry courses (as required to be a 

criminalist), and had previously worked as a lab supervisor and environmental 

quality control analyst. She further stated that she was then working on a master’s 

degree and had testified in around eight other criminal prosecutions. She stated 

that the most important training for a chemist was that received in the particular lab 

in which the chemist was working. She acknowledged, however, that she had only 

been analyzing blood for about three weeks when she tested appellant’s sample. 

Immediately before that time, she was in training and participated in setting up a 

new lab.2

The information in this case alleged that appellant “operate[d] a motor 

vehicle in a public place while intoxicated.” The jury charge defined “intoxicated”

 

2 When appellant attempted to introduce the criminalist’s college transcript, the State 

objected on relevance grounds. In excluding the evidence, the trial judge remarked:

The issue is did she take the required courses? Okay? And if she did, end of story. 

Now, if you’re going to try to put it up there and say that she made a C in this course or a 

D in this course, I’m not going to let you put that on.
4

as “not having the normal use of mental or physical faculties by reason of the 

introduction of alcohol, or having an alcohol concentration of 0.08 or more.” The 

information further alleged that at or near the time of the offense, appellant’s BAC 

was at least 0.15. The jury found appellant guilty of DWI but declined to find him 

guilty of having a BAC of 0.15 or greater. The trial court sentenced appellant to 

eight days in jail, ordered him to pay a $2,000 fine, and suspended his driver’s 

license for one year.

Expert’s Academic Transcript

In his first issue, appellant contends the trial court erred in excluding the

criminalist’s academic transcript from evidence. We review a trial court’s decision 

to admit or exclude evidence under an abuse of discretion standard. De La Paz v. 

State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009). As long as the trial 

court’s ruling falls within the zone of reasonable disagreement, we will affirm that

decision. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

Texas Rule of Evidence 401 defines “[r]elevant evidence” as “evidence 

having any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be 

without the evidence.” Relevant evidence is generally admissible. See Tex. R. 

Evid. 402; Erazo v. State, 144 S.W.3d 487, 499 (Tex. Crim. App. 2004). Irrelevant 

evidence is inadmissible. Tex. R. Evid. 402. Under Rule 403, a “court may 

exclude relevant evidence if its probative value is substantially outweighed by a 

danger of one or more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, or needlessly presenting cumulative evidence.” 

Tex. R. Evid. 403. In conducting a rule 403 analysis, courts must balance: (1) the 

inherent probative force of the proffered evidence and (2) the proponent’s need for 

that evidence, against (3) any tendency of the evidence to suggest decision on an 
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improper basis, (4) any tendency to confuse or distract the jury from the main 

issues, (5) any tendency to be given undue weight by the jury, and (6) the 

likelihood that presentation of the evidence will consume an inordinate amount of 

time or be cumulative of other evidence. Gigliobianco v. State, 210 S.W.3d 637, 

641–42 (Tex. Crim. App. 2006); Hedrick v. State, No. 14-14-00378-CR, 2015 WL 

4774365, at *3 (Tex. App.—Houston [14th Dist.] Aug. 13, 2015, no pet. h.).

3

Although the criminalist’s chemistry grades may have had some marginal 

relevance to issues in the case, we conclude that any such value was substantially 

outweighed by the dangers of confusing the issues, misleading the jury, and 

presenting needlessly cumulative evidence. The excluded transcript reveals that 

while in college, the criminalist took and passed 39 credit hours of chemistry 

classes, which was more than the 30 she said was required for her position. The 

transcript further shows that her chemistry grades were mostly Bs or B+s, but also 

included one A, several Cs or C+s, one D, and one F. Appellant suggests that this 

information would have been helpful for the jury in determining whether to accept 

Gooden’s testimony and conclusions concerning her analysis of appellant’s blood 

sample. 

Appellant neither disputes that the criminalist was qualified nor suggests any 

specific improprieties occurred in connection with her testing of his blood in this 

case. Appellant’s attempt to introduce her transcript sought to cast the vaguest of 

aspersions against the criminalist’s ability to perform a routine blood analysis. The 

exhibit offers nothing specific regarding her performance of this particularly test or 

her conclusions based thereon. While not uniformly stellar, the criminalist’s 

 

3 Although the trial court did not expressly conduct a Rule 403 balancing test in 

excluding the evidence, we will affirm a trial court’s ruling on any theory of law applicable to 

the case, even if the trial court did not purport to rely on that theory. See, e.g., State v. Esparza, 

413 S.W.3d 81, 85 (Tex. Crim. App. 2013).
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chemistry grades were not particularly troubling. Under these circumstances, the 

relevance of the transcript to any issues in dispute in the case was marginal at best,

and appellant’s need for the evidence was minimal.

The criminalist testified in some detail regarding her qualifications and 

experience, including her degree, her course work in chemistry, her work toward a 

master’s degree, and her prior work experience in the chemistry field. She further 

indicated that she was trained in the lab where she made her analysis and had 

helped set up the lab. Therefore, to the extent the transcript addressed the question 

of the criminalist’s qualifications, it was largely duplicative of—and substantially 

less enlightening than—her own testimony. Additionally, admission of the 

transcript risked distracting the jury from more important issues, such as whether 

appellant’s specific blood sample was properly taken and tested. Accordingly, we 

find that the trial court did not err in excluding the transcript because its probative 

value was substantially outweighed by its tendency to confuse the issues and

mislead the jury and the fact it presented needlessly cumulative evidence. See, 

e.g., Wiley v. State, 74 S.W.3d 399, 408 (Tex. Crim. App. 2002) (holding 

marginally relevant, speculative evidence was properly excluded under Rule 403). 

We therefore overrule appellant’s first issue.

Correlation of Test Results

In his second issue, appellant contends that the trial court erred in permitting 

Officer Perales to correlate the results of appellant’s performance on the “HGN” 

field sobriety test with a specific blood alcohol content. As stated, we consider the 

admission of evidence under an abuse of discretion standard. See De La Paz, 279 

S.W.3d at 343–44. Appellant specifically complains about the following exchange 

during the prosecutor’s re-direct examination of Perales:

Q. I want to go back to HGN. Defense asked you could you tell the 
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difference while conducting HGN if someone had one drink or 15 

drinks.4 But I want to know: Can—will HGN give you a stronger—

or will you see a stronger sign of the involuntary jerking of the eye 

with someone who is more intoxicated than someone who is less 

intoxicated?

A. Sure, you can.

Q. Okay. Now, you were about to say something about you can see it 

greater with the onset prior to 45 degrees. Will you please elaborate 

on that?

A. Yes. As a drug recognition expert, we are trained to look at—

[Defense Counsel:] I would object, Your Honor, as this case, 

as he’s testified, does not involve him performing drug recognition 

expert tests.

[Prosecutor:] And, Judge, he’s not going to say anything about 

drugs. He’s about to go into alcohol.

 

4 During cross-examination by defense counsel, Perales testified:

Q. And can you agree with me that the HGN test is similar whether you’ve had 

one drink or 15 drinks?

A. No.

Q. So you can tell how many drinks someone has had when you perform the 

HGN test?

A. No. Not unless they tell me.

Q. And so the HGN doesn’t correlate to some magic number?

A. Being trained as a drug recognition expert, I’m able to determine that based on 

the angle of onset.

Q. You are?

A. Yes.

Q. Were you able to determine that in this case?

A. I was able to determine that—

Q. When—is there another test, the vertical gaze nystagmus, to you use to tell if 

there’s been a high dosage of alcohol?

A. I’m sorry, I don't know if I finished my question [sic]; or you don’t want to 

hear it?

Q. I was—I was moving on.
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THE COURT: Okay. Overruled.

A. We are taught to observe the angle of onset and determine where 

prior to 45-degree angle is; and if it’s at 30 degrees, which is almost 

immediate, we subtract 50 from 30 [sic] and we get an answer of 20, 

which gives us an indication that the person is close to 0.20. And the 

same thing at 15 degrees and the same thing at—

[Defense counsel:] Your Honor, I’m going to object to the 

quantifying analysis that he’s making.

THE COURT: I’ll let him testify to what he was trained in. 

Overruled on that part.

A. Again—

THE COURT: Go ahead.

A. Again, at 15 degrees we subtract 15—I’m sorry. At 30 degrees, at 

35 degrees, and at 45 degrees and we subtract that angle of onset from 

50 and we’re able to determine.

Q. Okay. Let me try to ask you: In layman’s terms, does this mean 

the sooner that you start to see nystagmus, the more intoxicated 

someone is?

A. That is correct.

Q. Okay. And when you started to do the onset prior to 45 degrees, 

did you see nystagmus very early; or did you have to move the eye 

further to the side?

A. The—I was able to see the onset prior to 45-degree angle towards 

the middle as he was gazing. And then it started to do the involuntary 

jerking.

The Court of Criminal Appeals has held that “[a] witness qualified as an 

expert on the administration and technique of the HGN test may testify concerning 

a defendant’s performance on the HGN test, but may not correlate the defendant’s 

performance on the HGN test to a precise BAC.” Emerson v. State, 880 S.W.2d 

759, 769 (Tex. Crim. App. 1994). Although the Emerson Court recognized the 

general reliability of the HGN test for determining intoxication, the Court stated 

that the margin of error was too great to allow for exact estimations of BAC based 
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on performance on the test. Id. In other words, a properly trained officer may 

opine based on the HGN test results that a defendant was under the influence of 

alcohol, but he or she may not testify to that defendant’s exact BAC. Wisdom v. 

State, 39 S.W.3d 320, 323 (Tex. App.—Waco 2001, no pet.) (citing Emerson, 880 

S.W.2d at 769–70).

However, even assuming the trial court erred in admitting this portion of 

Perales’s testimony and appellant properly preserved the error, we find that any 

such error was harmless and thus not grounds for reversal. Generally, the 

erroneous admission of evidence is considered non-constitutional error, which is 

analyzed for harm under Texas Rule of Appellate Procedure 44.2(b). Tex. R. App. 

P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In

conducting an analysis under Rule 44.2(b), we examine the entire proceeding to 

determine whether the alleged error had a substantial and injurious effect on the 

jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If we 

determine the error did not influence the jury, or had but very slight effect, the 

verdict must stand. Johnson, 967 S.W.2d at 417. If, however, we have “grave 

doubts” about whether an error affected the outcome, we must treat the error as if it 

did. Hines v. State, 396 S.W.3d 706, 710-11 (Tex. App.—Houston [14th Dist.] 

2013, no pet.).

In this case, the complained-of testimony was not particularly clear. Perales 

did not expressly testify that the HGN test established appellant had a BAC over 

the legal limit much less offer a specific BAC for appellant.

5

 Additionally, the 

other evidence of appellant’s guilt was particularly strong. Perales himself 

 

5

It is also worth noting that during defense counsel’s cross-examination of Perales, 

Perales had already testified without objection that he was able to “correlate some magic 

number” based on HGN test results, apparently referencing BAC. See supra n.2. Thus, some of 

the complained-of information was already before the jury.
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concluded that—based on the field sobriety tests he administered and his 

observations of appellant—appellant was intoxicated at the time of his arrest and 

had lost the normal use of his physical and mental faculties. Additionally, the jury 

was able to observe appellant on the video recording, on which he is shown 

missing a number and repeating a number when asked to count, mistaking his left 

foot for his right foot, appearing unable to walk a straight line, and seeming

unsteady while walking and while standing still. Moreover, analysis of a blood 

sample taken from appellant shortly after his arrest showed his BAC to be 0.178, 

more than twice the legal limit of 0.08, at the time the sample was taken, and using 

retrograde extrapolation, the testing criminalist determined that appellant’s BAC 

would have been 0.195 to 0.230 at the time he was stopped.

Given the lack of clarity in the complained-of testimony and the strength of 

the evidence of appellant’s guilt, we conclude the error did not influence the jury 

or had at most a very slight effect. See Johnson, 967 S.W.2d at 417; see also 

Burkett v. State, 179 S.W.3d 18, 34-35 (Tex. App.—San Antonio 2005, no pet.) 

(holding erroneous admission of testimony correlating HGN test results with BAC 

level was harmless error in part due to other evidence proving offense). 

Accordingly, we overrule appellant’s first issue.

We affirm the trial court’s judgment.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Jamison, McCally, and Wise.

Publish — TEX. R. APP. P. 47.2(b).