DWI Appeal - Improper HGN Not Preserved for Appeal

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In Efren Garcia v. Texas, Not Reported in S.W.3d, 2011 WL 1198922 (Tex.App.-Tyler), the defense claimed that the trial court reversibly erred in allowing testimony from the arresting officer regarding the horizontal gaze nystagmus test although the officer conceded that he incorrectly administered the test. The first trial ended in a mistrial for reasons unrelated to this appeal. Before the second trial, the defense urged a motion in limine prohibiting the introduction of the HGN test on the grounds that it was improperly administered. The motion asked the trial court to exclude all references to or results of field sobriety tests unless it was shown that the tests were properly administered by a qualified person. In reurging his motion, Appellant's counsel summarized Officer Graham's testimony in the first trial regarding the HGN test, testimony that he argued indicated that Graham was unqualified to administer the test and had improperly administered it to Appellant. The trial court denied Appellant's motion.



At trial, "Appellant's counsel's relentless cross examination demolished the evidentiary value of the HGN test results as well as effectively exposed other shortcomings in Officer Graham's investigation." Graham conceded that he had administered the test incorrectly. On appeal however, the appellate court found that the error in admitting the HGN was not properly preserved:

“When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.” Tex.R. Evid. 103(a)(1); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991). An objection must be made unless the complaining party obtains a running objection or obtains a ruling on his complaint in a hearing outside the presence of the jury. Lopez v. State, 253 S.W.3d 680, 684 (Tex.Crim.App.2008).

Out of the presence of the jury and before the reading of the information, Appellant's counsel stated, “Your Honor, at this time, we would reurge our—the defense motion in limine in regard to the horizontal gaze nystagmus test.” The trial court heard no testimony during the short hearing. Appellant summarized for the court Officer Graham's testimony from the first trial, which counsel argued demonstrated that the HGN test given Appellant was incorrectly administered and Graham unqualified to give it. The trial court denied Appellant's motion. Appellant thereafter raised no objection to Officer Graham's testimony regarding the HGN test. Instead, Appellant's counsel effectively cross examined Officer Graham, eventually eliciting his admission that the test, as given, was not valid. Appellant did not ask the court to strike Officer Graham's testimony regarding the results of the HGN test. By failing to continue to object to Graham's testimony regarding the HGN test, Appellant waived error, if any, in admitting the testimony.



NOTE: This case contains several important and necessary steps in preserving a error on appeal.







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