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

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.
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