Driving While Intoxicated Case Law Update - Texas District ...

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P. VIDEO PART OF TAPE MAY BE ADMISSIBLE WITHOUT OPERATOR'S TESTIMONY Reavis v. State, 84 S.W.3d 716 (Tex.App.-Fort Worth , 2002, no pet.). Paoe v. State, 125 S.W. 3d 640 (Tex.App.-Houston [1"t Dist] 2003, pet. ref'd). Ihese cases dr'scuss the way you can admit a videotape even if you donT have the officer/witness available who was in the room with the defendant. The authority for admitting at least the video part of the tape falls under what the federal courts have called the "silent witness" rule. The key is whether there is sufficient evidence to enable a reasonable juror to conclude that the videotape is what the State claimed it to be. A showing of how the tape is loaded, that the machine was working should suffice. Bofh cases cited above involved a store security video. Johnson v. State, 2005 WL3244272 (Tex.App.-Fort Worth 2005, pdr ref'd) (Not designated for publication). ln-car videotape provided the only basrs for the traffic stop and officer/operator of the tape was unavailable to testify as he had been killed by a drunk driver subsequent to this arrest. Court held the tape alone, without the officer's testimony, was sufficient proof that the stop of the defendant's car was proper. O. INABILITY TO ID ALL BACKGROUND VOICES NOT A PROBLEM Jones v. State, 80 S.W.3d 686 (Tex.App.-Houston [1't Dist] 2002, no pet.). Predicate for admitting video is under Rule 901 of the lexas Rules of Evidence; Notfiing in that rule requires that every voice on the tape be identified by name. Allen v. State, 849 S.W.2d 838 (Tex.App.-Houston [1't Disu 1993, pet. ref'd). This opinion applied the old standard from the Edwards case fesf for tape admissibility and held that even under that test, the requirement that speakers be identified does not include background voices. Garza v. State, 794 S.W.2d 530 (Tex.App.-Corpus Christi 1990, reh. overruled). Under Edwards test, rt was sufficient that officer was able to identify the background voices as officers, even though the officers could not be named. 46
R. OFFICER'S NARRATIVE ON PERFORMANCE OF FST'S 1. CUMULATIVE Evans v. State, 2006 WL 1594000 (Tex.App.Houston [14th Dist.] 2006, pdr ref'd). In this case the defendant objected to admissibility of the audio portion of the DWI tape because of the officer's verbal narrative conclusions about defendant's performance on fhe FSIs. Because the jury had already heard the officer describe the same matters on direct without objection, the taped comments were merely cumulative and did not require reversal. 2. INADMISSIBLE HEARSAY Fischer v. State, 252 S.W.3d 375 (Tex.Crim.App.2008). At a Motion fo Suppress hearing, defendant sought to suppress the sound on the videotape where the officer's recorded commentary of what was occurring during traffic stop and where the officer dictated on videotape his obseruations of DWI suspect. The trial Court denied the Motion to Suppress; the defendant plead nolo and appealed. The Court of Appeals rejected fhe Sfafe's argument that these sfafemenfs were admissible as "presenf sense impression" and held that the comments were the equivalent to police report or offense report offered for truth of mafter asserfed, and thus, inadmissible hearsay, and the case was reversed and remanded. X. IN.COURT DEMONSTRATIONS/EXHIBITS A. FIELD SOBRIEW TESTS Bakerv. State,879 S.W.2d218 (Tex.App.-Houston [14th Dist] 1994, pet. ref'd). Court properly refused to allow defendant to demonstrate his ability to perform FSIs in court as no predicate was laid as to reliability or probative value of said demonstration. B. SMELLTEST Lewis v. State, 933 S.W.2d 172 (Tex.App.-Corpus Christi1996, pet. ref'd). Defendant claimed beer he was consuming was non-alcoholic beer to explain odor officers detected on his breath at time of stop. Defense counsel wanted to do experiment where officers in front of the jury would be asked to judge which of 9 cups had alcoholic and which had nonalcoholic beer. Test was properly disallowed as conditions of fesf s ubstantially differed from fhose existing at time of the stop. 47
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Driving While Intoxicated Case Law
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2. DOESN'T APPLY 18 F. OFFICER'S AR
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K, L. M. N. o. P. o. R. NOSOUND=NOP
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F. G. H, L J. K. L. 3. NO RIGHT TO
Page 9 and 10: C. D. STATUTORY REQUIREMENTS FOR DR
Page 11 and 12: E, F. G. H. t. J. K. L. M. N. o. P.
Page 13 and 14: O. IF YOU ALLEGE MORE PRIOR DWI'S T
Page 15 and 16: I. INFORMATION/CHARGING INSTRUMENT
Page 17 and 18: B. IMPROPER QUESTION/STATEMENT Hark
Page 19 and 20: DWI ROADBLOCKS A. ARE ILLEGAL Holt
Page 21 and 22: V. OCCUPATIONAL LICENSE CHART The f
Page 23 and 24: Elisibilitv for Occupational Driver
Page 25 and 26: Villarealv. State, 2008 WL 4367616
Page 27 and 28: out that hearsay is generally admis
Page 29 and 30: Foster v. State, 326 S.W.3d 609 (Te
Page 31 and 32: anyone other than officer to help h
Page 33 and 34: F. OFFICER'S ARREST AUTHORITY WHEN
Page 35 and 36: occur) who observed the traffic off
Page 37 and 38: a mile in the early morning hours.
Page 39 and 40: State v. Arriaqa, 5 S.W.3d 804 (Tex
Page 41 and 42: explain the margin of error or the
Page 43 and 44: P. "FOLLOWING TOO CLOSELY''- SUFFIC
Page 45 and 46: defendant from leaving. Officer sai
Page 47 and 48: 2. REASONABLE Bohren v. State,2011W
Page 49 and 50: Sinqleton v. State. 91 S.W.3d 342 (
Page 51 and 52: B. BASED ON'BREACH OF PEACE'THEORY
Page 53 and 54: IX. VIDEO A. PARTS OF PREDICATE CAN
Page 55 and 56: Mathieu v. State, 992 S.W.2d725 (Te
Page 57 and 58: F. ABSENCE OF VIDEOTAPE 1. NOT GROU
Page 59: K. NO SOUND = NO PROBLEM Aouirre v.
Page 63 and 64: was effor, albeit harmless, to allo
Page 65 and 66: forfeited in the guilt-innocence ph
Page 67 and 68: ecoming the focus of a DWI investig
Page 69 and 70: Rasan v. State,642S.W.2d 489 (Tex.C
Page 71 and 72: 2. OFFICER DOES NOT HAVE TO BE AN O
Page 73 and 74: the reliability of VGN before it is
Page 75 and 76: C. WALK AND TURN = LAY WITNESS TEST
Page 77 and 78: G. FAILURE TO EXPLAIN FST'S IN DEFE
Page 79 and 80: B. PROOF OF "STATE'' Barton v. Stat
Page 81 and 82: C. INSTRUMENT CERTIFICATION 1, NEW
Page 83 and 84: G. DIC.23 & DIC.24 WARNINGS 1. REQU
Page 85 and 86: warning on refusing alcoholfesfs, b
Page 87 and 88: efusing or of giving a sample for s
Page 89 and 90: 2. NO EVIDENCE THAT ADDITIONAL WARN
Page 91 and 92: Hall v. State, 649 S.W.2d 627 (Tex.
Page 93 and 94: 3. AFTER 2 HOURS Holloway v. State,
Page 95 and 96: P. BREATH TEST ADMISSIBLE AS PROOF
Page 97 and 98: T. LOSS OF NORMAL & PER SE LAW EVID
Page 99 and 100: fesf resu/fs were not inflammatory
Page 101 and 102: 6. IMPROPER ADMISSION OF EXTRAPOLAT
Page 103 and 104: esu/fs. As long as fhe operator kno
Page 105 and 106: suggesf that he was physically or m
Page 107 and 108: D. PROCEDURE FOR TAKING BLOOD SAMPL
Page 109 and 110: Thurman v. State, 861 S.W.2d 96 (Te
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4. NOT NECESSARY TO SHOW WHO DREW T
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Biqon v. State, 252 S.W.3d 360 (Tex
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offense of DWI," the Court finds th
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8. SEARCH WARRANT AFFIDAVIT CONTAIN
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(b) FArAL Farhart v. State, 337 S.W
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consenfs, 724.012 does not apply. H
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in the Sfafe's case-in-chief, the S
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was not the result of an involuntar
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trance-like high. The Court affirme
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C. CHARGE ON WORKING CONDITION OF I
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intoxication sefs forfh alternative
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of Appeals had misconstrued the act
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the impairment element of the Sfafe
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Sledqe v. State ,1994 WL 247961 (Te
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V. WHEN CHARGE SPECIFICALLY USES SU
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Tennerv v. State, 680 S.W.2d 629 (T
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E. ENHANCEMENT OF FELONY DWI WITH N
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Also, if stipulated that there are
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of the priors. He then complained o
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K. PROPER TO ALLEGE DATE PROBATION
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o. IF YOU ALLEGE MORE PRIOR DWI'S T
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a violation of the ex posf facto la
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W. EXPUNCTION WILL NOT ALWAYS RENDE
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intoxicated (DWI) from a C/ass B mi
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Holmberq v. State, 931 S.W.2d 3(Tex
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G. NO CONFLICT BETWEEN N'DUI'' AND
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equipment was obserued in the vehic
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unning, radio playing loudly, and d
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wheels was consr.stent with the whe
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Wriqht v. State, 932 S.W.2d 572 (Te
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Bucek v. State ,724 S.W .2d 129 (Te
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concerning how recently the vehicle
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B. DENIAL OF PROBATION DUE TO LANGU
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alcohol by calling a sysfem adminis
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Avfor v. State, 2011 WL 1659887 (Te
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Carrasco v. State,712S.W.2d 120 (Te
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Drapkin v. State, 781 S.W.2d 710 (T
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Folev v. State, 327 S.W.3d 907 (Tex
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(Tex.Crim.App. 1988)..... .......42
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Human v. State, 749 S.W.2d 832 {Tex
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Lewisv.State,72S.W.3d704(Tex.App.-F
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Moncivais v. State, 2O02WL 1445200
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Poncev. State,828 S.W.2d 50 (Tex.Ap
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Schaum v. State, 833 S.W.2d 644 (Te
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State v. Gerstenkom, 239 S.W.3d 357
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Stone v. State, 685 S.W.2d 791 (Tex
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Vasquezv. State,2007WL 2417373 (Tex
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