TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00620-CR

Steven Brian Meunier, Appellant v. The State of Texas, Appellee

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT

NO. CR2001-233, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING

A jury convicted appellant Steven Brian Meunier of felony driving while intoxicated (ADWI@) and sentenced him to fourteen years= confinement in the Institutional Division of the Texas Department of Criminal Justice.^[1] See Tex. Pen. Code Ann. '' 49.04, .09 (West Supp. 2002). He contends that the evidence is insufficient to support his conviction and that the district court erred in admitting certain testimony and in overruling his request for a mistrial. We will affirm.

Sufficiency of the Evidence sobriety tests. Joyce admitted that the videotape did not show Meunier wavering or teetering as he stood, but noted that Meunier stood with his feet wide apart, which normally Awill enable you to maintain your balance better.@ Joyce testified that Meunier was cooperative at the scene but became uncooperative when brought to the station and refused to answer questions or perform any tests.

Officer Morris testified that he administered field sobriety tests to Meunier, one of which was the horizontal gaze nystagmus test (AHGN@ test), during which an officer observes a suspect=s eye movements for six possible indications of intoxication. Morris said that Meunier=s responses indicated all six clues of intoxication. Morris testified that he also had Meunier perform a walk-and-turn test, do a thirty- second one-leg stand, and recite the alphabet. Meunier swayed and wavered during the walk-and-turn test, did not lift his foot as directed for the one-leg stand, and recited the alphabet until Ae,@ then Abegan reciting random letters and then stopped.@ Meunier=s performance on the four tests led Morris to believe that Meunier was intoxicated and Anot in possession of his full mental and physical faculties.@ Morris did not videotape the field sobriety tests; he was Apretty sure,@ but not positive, that his video camera was not working at the time.

Meunier denied that he was intoxicated. He testified that he was Ahung over@ and tired from being up late and drinking the night before. He said he stubbed his toe as he got out of his truck, explaining why he leaned against the building as he walked. He believed that he had been videotaped performing the field sobriety tests and said he thought he performed well on those tests. He refused to take further tests when he was videotaped at the police station because he was angry.

The fact that Meunier was initially cooperative and did not drive erratically does not vitiate the evidence supporting a finding that he was intoxicated. As for Morris=s failure to videotape Meunier=s performance of the field sobriety tests, a fact that Meunier characterizes as a Astartling set of events,@ Morris testified that he did not believe that his video equipment was working at the time. That he could not so testify with complete certainty does not discredit his and Joyce=s testimony about their observations of Meunier=s performance of the tests. Meunier=s testimony that he was not intoxicated and his explanations for his behavior do not invalidate or overwhelm the State=s contrary evidence. Joyce noted the odor of alcoholic beverage on Meunier=s breath and observed that his eyes were glassy and bloodshot and that he seemed to have trouble balancing. Morris testified that Meunier performed poorly on all four field sobriety tests, and Joyce testified similarly of his brief observations of the testing. Whether viewed neutrally or in the light most favorable to the jury=s verdict, the evidence is legally and factually sufficient to support the jury=s guilty verdict. We overrule Meunier=s first and second issues on appeal.

Morris=s Testimony Regarding the HGN Test

In his third issue, Meunier contends that the district court committed reversible error by allowing Morris to testify about the HGN test because Morris was not qualified to testify on the subject.

HGN test evidence is sufficiently reliable to be admitted as an indicator of intoxication. Emerson v. State, 880 S.W.2d 759, 768-69 (Tex. Crim. App. 1994). A witness qualified by knowledge, skill, experience, training, or education may give an opinion or otherwise testify to scientific, technical, or other specialized knowledge if it will assist the trier of fact to understand the evidence or determine a fact issue. Tex. R. Evid. 702. Although a police officer seeking to testify about a defendant=s performance on an HGN test must be qualified as an expert in the test=s administration and technique, Emerson, 880 S.W.2d at 769, it is not necessary that he be certified by the State of Texas if he is qualified by other training or experience. See Smith v. State, 65 S.W.3d 332, 344 (Tex. App.CWaco 2001, no pet.); Kerr v. State, 921 S.W.2d 498, 502 (Tex. App.CFort Worth 1996, no pet.). A trial court has broad discretion in deciding whether a witness qualifies as an expert and we will not reverse a trial court=s decision on such a matter absent a clear abuse of discretion. Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990); Kerr, 921 S.W.2d at 502.

Morris testified that he learned to give the HGN test in December 1999, after successfully completing a two-day training class held by the Texas Commission of Law Enforcement Standards. He testified that he had not completed the Texas A&M certification course, but that he had Areceived certification from our training office to conduct the test.@ Morris stated that he had administered the test Aseveral hundred times@ and had made between seventy-five and one hundred DWI arrests during his six- year tenure as a peace officer. Based on this record, we cannot hold that the district court abused its discretion by allowing Morris to testify about the HGN test. See Gullatt v. State, 74 S.W.3d 880, 882-84 (Tex. App.CWaco 2002, no pet.); Smith, 65 S.W.3d at 344; Kerr, 921 S.W.2d at 502. We overrule Meunier=s third issue on appeal.

Should Meunier Have Been Granted a Mistrial?

In his fourth issue, Meunier complains that the district court should have granted him a mistrial following improper jury argument by the State during the punishment phase.

After the jury returned a guilty verdict and during closing statements in the punishment stage, the prosecutor stated:

Let me digress for one moment. The fact that the defendant elected to go to you for punishment doesn=t mean that you owe him anything. He has chosen you to be the ones to judge him. Why would he choose you instead of a judge? Because he hopes that you will give him a lesser sentence.

Meunier objected to the statement as improper argument, and the district court sustained the objection and instructed the jury to disregard the statement. Meunier then moved for a mistrial, and the district court denied his motion.

Proper jury argument is limited to: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) an answer to argument by opposing counsel, or (4) a plea for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996); Lee v. State, 51 S.W.3d 365, 371 (Tex. App.CAustin 2001, no pet.). Generally, an instruction to disregard an improper jury argument will cure any error. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996); Lee, 51 S.W.3d at 371. Improper jury argument is reversible error when it: (1) violates a statute, (2) injects new and harmful facts into the case, or (3) is manifestly improper, harmful, and prejudicial to the rights of the accused. Wilson, 938 S.W.2d at 59; Lee, 51 S.W.3d at 371.

Meunier contends that the prosecutor=s statement was incurably improper, harmful, and prejudicial because it Arequested the jury to punish Appellant for exercising his right to select the jury for punishment.@ Even if his complaint were correct, Meunier would be entitled only to a new punishment hearing; his conviction would stand. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 2002).

Having reviewed the record, however, we conclude that the statement was not so harmful as to require reversal and the district court's instruction was sufficient to cure any error in the argument. See Schulz v. State, 446 S.W.2d 872, 875-76 (Tex. Crim. App. 1969) (statement that defendant was trying to Ahoodwink@ jury rather than having trial judge assess punishment was not reversible error). We overrule Meunier=s fourth issue on appeal.

We affirm the judgment of conviction.