HGN test in Texas

2025See Emerson, 880 S.W.2d at 767 (noting “[t]he accuracy of the HGN test has been estimated at various levels, depending on such factors as testing conditions and the ability and experience of those conducting the test”).

2025See Emerson, 880 S.W.2d at 767 (noting “[t]he accuracy of the HGN test has been estimated at various levels, depending on such factors as testing conditions and the ability and experience of those conducting the test”).

2019Id.; see McRae v. State, 152 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (“HGN evidence is reliable, admissible scientific evidence under rule 702 when performed by a police officer who is certified by [NHTSA] and who applies the technique properly.”); Compton v. State, 120 S.W.3d 375, 377 (Tex. App.— Texarkana 2003, pet. ref’d) (noting that Emerson court concluded “that both the 8 underlying theory and the technique employed in administering the HGN test made it a sufficiently reliable indicator of intoxication”).

2019Id.; see McRae v. State, 152 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (“HGN evidence is reliable, admissible scientific evidence under rule 702 when performed by a police officer who is certified by [NHTSA] and who applies the technique properly.”); Compton v. State, 120 S.W.3d 375, 377 (Tex. App.— Texarkana 2003, pet. ref’d) (noting that Emerson court concluded “that both the 8 underlying theory and the technique employed in administering the HGN test made it a sufficiently reliable indicator of intoxication”).

2013App. 2012); see Kerr v. State, 921 S.W.2d 498, 502 (Tex. App.—Fort Worth 1996, no pet.) (“In each individual case . . . the State still must show by expert testimony that the test was properly administered.”).3 The State, therefore, must offer evidence to establish that the HGN test is properly applied on the occasion in question.

2013App. 2012); see Kerr v. State, 921 S.W.2d 498, 502 (Tex. App.—Fort Worth 1996, no pet.) (“In each individual case . . . the State still must show by expert testimony that the test was properly administered.”).3 The State, therefore, must offer evidence to establish that the HGN test is properly applied on the occasion in question.

2025See, e.g., Plouff v. State, 192 S.W.3d 213, 221 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (rejecting appellant’s claim that HGN test results were 4 The only deviation from procedure the patrol officer acknowledged was making an accommodation for Castillo’s back pain by allowing Castillo to sit on the car during the test instead of stand with his feet together.

2018App. 2017); see also Adkins v. State, 418 S.W.3d 856, 863 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (test results for blood drawn from appellant are scientific evidence); Plouff v. State, 192 S.W.3d 213, 218 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (“[t]estimony concerning the HGN test is scientific evidence”).

2018See Smith v. State, 65 S.W.3d 332, 345 (Tex. App.—Waco 2001, no pet.) (holding officer’s testimony correlating performance on HGN test with a specific BAC harmless where breathalyzer results showed above 0.08 BAC and there was testimony the defendant “smelled of alcohol, [had bloodshot eyes], and failed field sobriety tests”).

2009See Singleton v. State, 91 S.W.3d 342, 348 (Tex. App.—Texarkana 2002, no pet.) (concluding that trial court could determine that officer was expert based on his knowledge, skill, experience, training, or education despite evidence that he was not certified to perform SFSTs); Smith v. State, 65 S.W.3d 332, 344 (Tex. App.—Waco 2001, no pet.) (holding that Emerson does not require that expert be certified before his testimony on subject of HGN test will be admissible); Kerr v. State, 921 S.W.2d 498, 502 (Tex. App.—Fort Worth 1996, no pet.) (refusing to interpret Emerson to require that expert mus

2025Because Officer Godden testified that he checked appellant for the indicators as he performed the HGN test, Gooden met the requirements of the NHTSA Manual.”); see also Webster v. State, 26 S.W.3d 717 , 722–23 (Tex. App.—Waco 2000, pet. ref’d) (stating that screening for other causes of nystagmus can be performed while conducting HGN test and is consistent with NHTSA manual).

2025Because Officer Godden testified that he checked appellant for the indicators as he performed the HGN test, Gooden met the requirements of the NHTSA Manual.”); see also Webster v. State, 26 S.W.3d 717 , 722–23 (Tex. App.—Waco 2000, pet. ref’d) (stating that screening for other causes of nystagmus can be performed while conducting HGN test and is consistent with NHTSA manual).

2020The purpose of the HGN test is to check for three clues in each eye—lack of smooth pursuit, distinct nystagmus 2 at maximum deviation, and onset of nystagmus prior to 45 degrees.1 McRae v. State, 152 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).

2020The purpose of the HGN test is to check for three clues in each eye—lack of smooth pursuit, distinct nystagmus 2 at maximum deviation, and onset of nystagmus prior to 45 degrees.1 McRae v. State, 152 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).

2011“If it is shown that the officer has extensive training in administering the HGN test, has been certified through a training course specifically including the administration of the HGN test, and has extensive experience in administering the HGN test, the trial court does not abuse its discretion in allowing the officer to testify as an expert on the administration and technique of the test.” Id. at 761 ; see also Kerr v. State , 921 S.W.2d 498, 502 (Tex. App.—Fort Worth 1996, no pet.) (“[W]e do not interpret . . .

2011“If it is shown that the officer has extensive training in administering the HGN test, has been certified through a training course specifically including the administration of the HGN test, and has extensive experience in administering the HGN test, the trial court does not abuse its discretion in allowing the officer to testify as an expert on the administration and technique of the test.” Id. at 761 ; see also Kerr v. State , 921 S.W.2d 498, 502 (Tex. App.—Fort Worth 1996, no pet.) (“[W]e do not interpret . . .

2020Testimony concerning HGN test results is scientific evidence subject to the requirements of Kelly v. State, 824 S.W.2d 568 (Tex. Crim.

2018Testimony concerning HGN test results is scientific evidence subject to the requirements of Kelly v. State, 824 S.W.2d 568 (Tex. Crim.

2006See King, 953 S.W.2d at 271 ; see also Hunt v. State, No. 14-00-01318-CR, 2002 WL 121967 , at *2 (Tex.App.-Houston [14th Dist.] Jan. 31, 2002) (not designated for publication) (presuming admission of testimony about the HGN test was error and holding that it did not affect Hunt’s substantial rights and was “harmless in light of other properly admitted testimony”).

2006See King, 953 S.W.2d at 271 ; see also Hunt v. State, No. 14-00-01318-CR, 2002 WL 121967 , at *2 (Tex.App.-Houston [14th Dist.] Jan. 31, 2002) (not designated for publication) (presuming admission of testimony about the HGN test was error and holding that it did not affect Hunt’s substantial rights and was “harmless in light of other properly admitted testimony”).

2015See 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).

2014See Burkett v. State, 179 S.W.3d 18, 26 (Tex. App.—San Antonio 2005, no pet.) (evidence sufficient to prove intoxication under impairment theory where defendant with physical disabilities failed sobriety tests, exhibited six clues on HGN test, and smelled of alcohol).

2017Appellant’s other complaints similarly describe only slight deviations from protocol, which do not warrant exclusion of HGN test results. 9 See Plouff, 192 S.W.3d at 221 & n.7; see also Webster v. State, 26 S.W.3d 717, 721-22 (Tex. App.-Waco 2000, pet. ref'd) (determining that screening for potential causes of nystagmus, other than alcohol ingestion, can be performed while conducting the HGN test, consistent with the NHTSA manual); see also Quinney v. State, 99 S.W.3d 853, 858 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“The only pre-test screening required by the NHTSA Manual is for the o

2017Appellant’s other complaints similarly describe only slight deviations from protocol, which do not warrant exclusion of HGN test results. 9 See Plouff, 192 S.W.3d at 221 & n.7; see also Webster v. State, 26 S.W.3d 717, 721-22 (Tex. App.-Waco 2000, pet. ref'd) (determining that screening for potential causes of nystagmus, other than alcohol ingestion, can be performed while conducting the HGN test, consistent with the NHTSA manual); see also Quinney v. State, 99 S.W.3d 853, 858 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“The only pre-test screening required by the NHTSA Manual is for the o

2009See Singleton v. State, 91 S.W.3d 342, 348 (Tex. App.—Texarkana 2002, no pet.) (concluding that trial court could determine that officer was expert based on his knowledge, skill, experience, training, or education despite evidence that he was not certified to perform SFSTs); Smith v. State, 65 S.W.3d 332, 344 (Tex. App.—Waco 2001, no pet.) (holding that Emerson does not require that expert be certified before his testimony on subject of HGN test will be admissible); Kerr v. State, 921 S.W.2d 498, 502 (Tex. App.—Fort Worth 1996, no pet.) (refusing to interpret Emerson to require that expert mus

2009See Singleton v. State , 91 S.W.3d 342, 348 (Tex. App.--Texarkana 2002, no pet.) (concluding that trial court could determine that officer was expert based on his knowledge, skill, experience, training, or education despite evidence that he was not certified to perform SFSTs); Smith v. State , 65 S.W.3d 332, 344 (Tex. App.--Waco 2001, no pet.) (holding that Emerson does not require that expert be certified before his testimony on subject of HGN test will be admissible); Kerr v. State , 921 S.W.2d 498, 502 (Tex. App.--Fort Worth 1996, no pet.) (refusing to interpret Emerson to require that expe

2000The HGN test "presumes that a sober person will exhibit smooth eye movement up to a greater angle than an intoxicated person.” Howard v. State, 744 S.W.2d 640, 641 (Tex.App. — Houston [14th Dist.] 1987, no pet.).

2000The HGN test "presumes that a sober person will exhibit smooth eye movement up to a greater angle than an intoxicated person.” Howard v. State, 744 S.W.2d 640, 641 (Tex.App. — Houston [14th Dist.] 1987, no pet.).

2019See Youens v. State, 988 S.W.2d 404, 406 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“In other words, an officer trained in administering the HGN test may give his opinion that a suspect is under the influence of alcohol[] but may not testify to that suspect’s exact blood[-]alcohol content.”).

2019See Youens v. State, 988 S.W.2d 404, 406 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“In other words, an officer trained in administering the HGN test may give his opinion that a suspect is under the influence of alcohol[] but may not testify to that suspect’s exact blood[-]alcohol content.”).

2018See generally, Kamen v. State, 305 S.W.3d 192, 194 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (explaining standardized field sobriety tests). –6– We review the trial court’s admission of evidence of abuse of discretion.

2013App. 1998); see Kamen v. State, 305 S.W.3d 192, 197 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (applying non-constitutional harm analysis to admission of HGN test results).

2010See Karnes, 127 S.W.3d at 196 .

2010See Karnes, 127 S.W.3d at 196 .

2001Id. *164 In her order, the ALJ found, among other things, that the officer had probable cause because Fisher performed poorly on the HGN test.

2001Id. *164 In her order, the ALJ found, among other things, that the officer had probable cause because Fisher performed poorly on the HGN test.

2014App. 1994) (en banc) (discussing the HGN test); Lewis v. State, 933 S.W.2d 172, 181 (Tex. App.—Corpus Christi 1996, pet. ref’d) (holding the officer’s HGN testimony was “the most accurate indicator of the appellant’s intoxication available, since appellant did not take an intoxilizer [sic] breath test”).

2014App. 1994) (en banc) (discussing the HGN test); Lewis v. State, 933 S.W.2d 172, 181 (Tex. App.—Corpus Christi 1996, pet. ref’d) (holding the officer’s HGN testimony was “the most accurate indicator of the appellant’s intoxication available, since appellant did not take an intoxilizer [sic] breath test”).

2012See, e.g., Maxwell v. State, 253 S.W.3d 309, 314 (Tex. App.—Fort Worth 2008, pet. ref’d) (probable cause to arrest existed where defendant refused to submit to field sobriety tests, was caught speeding, and admitted that he had been drinking); Garrett, 22 S.W.3d at 654-55 (probable cause to arrest existed where defendant had violated traffic laws, smelled like alcohol, had watery eyes, and refused to participate in field sobriety tests); Nottingham v. State, 908 S.W.2d 585, 588 (Tex. App.—Austin 1995, no pet.) (probable cause to arrest existed where defendant smelled like alcohol, admitted to

2012See, e.g. , Maxwell v. State , 253 S.W.3d 309, 314 (Tex. App.--Fort Worth 2008, pet. ref'd) (probable cause to arrest existed where defendant refused to submit to field sobriety tests, was caught speeding, and admitted that he had been drinking); Garrett , 22 S.W.3d at 654-55 (probable cause to arrest existed where defendant had violated traffic laws, smelled like alcohol, had watery eyes, and refused to participate in field sobriety tests); Nottingham v. State , 908 S.W.2d 585, 588 (Tex. App.--Austin 1995, no pet.) (probable cause to arrest existed where defendant smelled like alcohol, admitt

2022Nevertheless, he argues that, because the HGN test is not sufficiently reliable to support a finding of a specific BAC and the hours-later blood draw is not conclusive to show the BAC at the time of driving absent sufficient retrograde extrapolation testimony, see Kirsch, 306 S.W.3d at 744 ; Emerson, 880 S.W.2d at 769 , the State has failed to prove that he was intoxicated when he was driving under the per se theory of intoxication.

2022Nevertheless, he argues that, because the HGN test is not sufficiently reliable to support a finding of a specific BAC and the hours-later blood draw is not conclusive to show the BAC at the time of driving absent sufficient retrograde extrapolation testimony, see Kirsch, 306 S.W.3d at 744 ; Emerson, 880 S.W.2d at 769 , the State has failed to prove that he was intoxicated when he was driving under the per se theory of intoxication.

2020The State’s only contention on appeal is that the trial court misapplied the law to the facts because slight deviations from the standard for administering the HGN test go to the weight of the evidence, not its admissibility. 1 See Williams v. State, 525 S.W.3d 316, 324 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); Hartman v. State, 198 S.W.3d 829 , 839–40 (Tex. App.—Corpus Christi–Edinburg 2006, pet. struck); Compton v. State, 1 The State does not argue, for example, that other evidence indicating Arcelay’s guilt was sufficiently strong to render any error harmless.

2020The State’s only contention on appeal is that the trial court misapplied the law to the facts because slight deviations from the standard for administering the HGN test go to the weight of the evidence, not its admissibility. 1 See Williams v. State, 525 S.W.3d 316, 324 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); Hartman v. State, 198 S.W.3d 829 , 839–40 (Tex. App.—Corpus Christi–Edinburg 2006, pet. struck); Compton v. State, 1 The State does not argue, for example, that other evidence indicating Arcelay’s guilt was sufficiently strong to render any error harmless.

2012See, e.g., Maxwell v. State, 253 S.W.3d 309, 314 (Tex. App.—Fort Worth 2008, pet. ref’d) (probable cause to arrest existed where defendant refused to submit to field sobriety tests, was caught speeding, and admitted that he had been drinking); Garrett, 22 S.W.3d at 654-55 (probable cause to arrest existed where defendant had violated traffic laws, smelled like alcohol, had watery eyes, and refused to participate in field sobriety tests); Nottingham v. State, 908 S.W.2d 585, 588 (Tex. App.—Austin 1995, no pet.) (probable cause to arrest existed where defendant smelled like alcohol, admitted to

2012See, e.g. , Maxwell v. State , 253 S.W.3d 309, 314 (Tex. App.--Fort Worth 2008, pet. ref'd) (probable cause to arrest existed where defendant refused to submit to field sobriety tests, was caught speeding, and admitted that he had been drinking); Garrett , 22 S.W.3d at 654-55 (probable cause to arrest existed where defendant had violated traffic laws, smelled like alcohol, had watery eyes, and refused to participate in field sobriety tests); Nottingham v. State , 908 S.W.2d 585, 588 (Tex. App.--Austin 1995, no pet.) (probable cause to arrest existed where defendant smelled like alcohol, admitt

2026See id. (noting that inclusion of performance on field-sobriety tests in affidavit helped establish probable cause).

2026See id. (noting that inclusion of performance on field-sobriety tests in affidavit helped establish probable cause).

2019Id.; see Gullatt v. State, 74 S.W.3d 880 , 883–84 (Tex. App.—Waco 2002, no pet.) (holding that officer’s testimony was within parameters of Emerson when officer testified he was certified to administer HGN test, officer testified that defendant’s performance on HGN test indicated defendant was intoxicated, and officer did not use performance on HGN test to estimate defendant’s blood-alcohol level).

2019Id.; see Gullatt v. State, 74 S.W.3d 880 , 883–84 (Tex. App.—Waco 2002, no pet.) (holding that officer’s testimony was within parameters of Emerson when officer testified he was certified to administer HGN test, officer testified that defendant’s performance on HGN test indicated defendant was intoxicated, and officer did not use performance on HGN test to estimate defendant’s blood-alcohol level).

2018App.), cert. denied, 513 U.S. 931 (1994) (holding that it was error for police officer to correlate results of HGN test with a specific BAC); see also Lorenz v. State, 176 S.W.3d 492, 496 (Tex. App.—Houston [1st Dist.] 2004, pet ref’d) (discussing Emerson’s applicability in the context of multiple field-sobriety tests).

2007App.), cert. denied, 513 U.S. 931 , 115 S.Ct. 323 , 130 L.Ed.2d 284 (1994), the Court determined that test was sufficiently reliable to be admitted if a proper predicate was laid, and in order for testimony concerning a defendant's performance on the test to be admissible: . . . it must be shown that the witness testifying is qualified as an expert on the HGN test, specifically concerning its administration and technique.

2007App.), cert. denied, 513 U.S. 931 , 115 S.Ct. 323 , 130 L.Ed.2d 284 (1994), the Court determined that test was sufficiently reliable to be admitted if a proper predicate was laid, and in order for testimony concerning a defendant's performance on the test to be admissible: . . . it must be shown that the witness testifying is qualified as an expert on the HGN test, specifically concerning its administration and technique.

2007App.), cert. denied, 513 U.S. 931 , 115 S.Ct. 323 , 130 L.Ed.2d 284 (1994), the Court related the scientific theory underlying the HGN test and the technique prescribed by the National Highway Traffic Safety Administration to correlate nystagmus with intoxication.

2016App. 1994) (concluding that HGN test was reliable indicator of intoxication); see also Finley v. State, 809 S.W.2d 909, 913 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (“Texas courts consistently uphold DWI convictions based upon the opinion testimony of police officers who observed the defendant’s unsatisfactory performance in field sobriety tests.”).

2015This testimony alone would be sufficient to uphold the DWI, see id., but Nava also testified that Elizondo’s breath test results were 0.167 and 0.157, which is approximately twice the legal limit of 0.08.

2018App.), cert. denied, 513 U.S. 931 (1994) (holding that it was error for police officer to correlate results of HGN test with a specific BAC); see also Lorenz v. State, 176 S.W.3d 492, 496 (Tex. App.—Houston [1st Dist.] 2004, pet ref’d) (discussing Emerson’s applicability in the context of multiple field-sobriety tests).

2006Similarly, in Lorenz v. State , this court found the evidence factually sufficient to support a DWI conviction where the defendant exhibited bloodshot eyes, slurred speech, and a strong odor of an alcoholic beverage on his breath; admitted that he had consumed portions of three alcoholic beverages within an hour and fifteen minutes; had six clues on the HGN test; put his foot down three times, swayed three times, and raised his arms for balance twice during the one-leg-stand test; missed stepping heel-to-toe seven times, raised his arms for balance four times, could not keep his balance during