Beauchamp v. State

Decision Date26 January 1994
Docket NumberNo. 08-93-00031-CR,08-93-00031-CR
Citation870 S.W.2d 649
PartiesWesley Ray BEAUCHAMP, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Thomas S. Morgan, Midland, for appellant.

Mark H. Dettman, County Atty., Midland, for appellee.

Before KOEHLER, BARAJAS and LARSEN, JJ.

OPINION

KOEHLER, Justice.

Wesley Ray Beauchamp appeals his conviction for the misdemeanor offense of driving while intoxicated. Upon a finding of guilt by the jury, the trial court assessed punishment at 20 days' confinement in the county jail, probated for one year, and a fine of $600. We affirm the judgment of the trial court.

In his first point of error, Appellant contends that the trial court erred in denying his plea in bar based upon Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) and State v. Neff, 841 S.W.2d 68 (Tex.App.--El Paso 1992, no pet.), which followed Grady v. Corbin. Appellant was arrested on December 1, 1990 for driving while intoxicated, failure to stay in a single marked lane, and speeding. Appellant was convicted of the two traffic offenses and paid a fine for each. Appellant filed a plea in bar with respect to his pending driving while intoxicated charge based upon his convictions for the two traffic offenses. That plea in bar was denied, and Appellant was subsequently convicted.

The cases relied upon by Appellant have been overruled since Appellant filed his brief. Grady v. Corbin was overruled by United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Dixon was adopted by the Court of Criminal Appeals in Rice v. State, 861 S.W.2d 925 (Tex.Crim.App.1993) and State v. Holguin, 861 S.W.2d 919 (Tex.Crim.App.1993). In successive prosecution contexts, we now apply the "same-elements" test set out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). United States v. Dixon, 509 U.S. at ----, 113 S.Ct. at 2856, 125 L.Ed.2d at 568; Rice, 861 S.W.2d at 925; Holguin, 861 S.W.2d at 920. This test inquires whether each offense contains an element not contained in the other; if not, double jeopardy bars a successive prosecution. Rice, 861 S.W.2d at 925; Holguin, 861 S.W.2d at 920.

Appellant's conviction of the driving while intoxicated charge following his convictions for speeding and failure to drive in a single marked lane is not barred under Blockburger because the driving while intoxicated and traffic offenses contain dissimilar elements. See Rice, 861 S.W.2d at 925-26; Holguin, 861 S.W.2d at 920-21. The driving while intoxicated charge requires the State to prove that the defendant was intoxicated; speeding and failure to drive in a single marked lane do not. TEX.REV.CIV.STAT.ANN. art. 6701l -1(b) (Vernon Supp.1993); TEX.REV.CIV.STAT.ANN. art. 6701d, § 166 (Vernon 1977); TEX.REV.CIV.STAT.ANN. art. 6701d, § 60 (Vernon 1977 and Supp.1993). The speeding charge requires the State to prove that the defendant drove at a speed greater than reasonably necessary and prudent under the circumstances then existing, or drove in excess of the lawful speed limit; driving while intoxicated does not. TEX.REV.CIV.STAT.ANN. art. 6701l -1(b) (Vernon Supp.1993); TEX.REV.CIV.STAT.ANN. art. 6701d, § 166 (Vernon 1977). The failure to drive in a single marked lane charge requires the State to prove that the defendant did not drive as nearly as practicable entirely within a single lane; driving while intoxicated does not. TEX.REV.CIV.STAT.ANN. art. 6701l -1(b) (Vernon Supp.1993); TEX.REV.CIV.STAT.ANN. art. 6701d, § 60 (Vernon 1977 and Supp.1993). Appellant's first point of error is overruled.

In his second point of error, Appellant contends that the trial court erred by excluding the testimony of a defense witness who would have testified that one of the arresting officers said that he did not believe that Appellant was intoxicated. He argues that the testimony was admissible as extrinsic evidence of a prior inconsistent statement under TEX.R.CRIM.EVID. 612(a), and alternatively, was admissible under TEX.R.CRIM.EVID. 803(1) as a statement of present sense impression.

The record reflects that Sgt. John Madden and Trooper John Barton of the Department of Public Safety, were working as partners on the evening of Appellant's arrest. They were traveling to the scene of an accident involving another D.P.S. trooper when they came upon Appellant's vehicle at approximately 1:45 a.m. on Interstate 20. While following the vehicle for about two miles, Madden noted that Appellant's speed had varied from 50 m.p.h. to 67 m.p.h., and he had weaved out of his lane several times. Madden stopped Appellant for speeding and failing to drive in a single marked lane. He conducted some initial sobriety tests while Barton re-mounted the video recorder which had been detached from the patrol car in preparation for filming the scene of the accident. Thus, the first few sobriety tests were not recorded. After all of the sobriety tests were completed, Madden concluded that Appellant was intoxicated and placed him under arrest. Barton said that although he did not have as much contact with Appellant at the scene, he had watched some of the sobriety tests and he also concluded that Appellant was intoxicated after the tests were completed.

The troopers also determined that Appellant's passenger, Walter Brumley, was intoxicated and would not allow him to drive Appellant's car. Madden and Barton, with Appellant's consent, decided that Madden would transport Appellant to jail, while Barton transported Brumley in Appellant's vehicle. It was during this drive into Midland that Barton and Brumley had a discussion. Outside the presence of the jury, Brumley testified that when Barton could not see the speedometer in Appellant's car, he asked how Appellant had determined how fast he was driving. Brumley showed him how Appellant had used the dome light to illuminate the speedometer. Barton, after learning about this, allegedly stated to Brumley that he did not believe that Appellant was intoxicated.

Appellant first contends that Brumley's testimony concerning the officer's statement was admissible under TEX.R.CRIM.EVID. 612(a) and Jackson v. State, 756 S.W.2d 82 (Tex.App.--San Antonio 1988), rev'd on other grounds, 772 S.W.2d 117 (Tex.Crim.App.1989). A defendant must lay a proper predicate under Rule 612(a) before seeking to introduce extrinsic evidence of a witness's inconsistent statement. TEX.R.CRIM.EVID. 612(a); Alvarez-Mason v. State, 801 S.W.2d 592, 595 (Tex.App.--Corpus Christi 1990, no pet.); Allen v. State, 788 S.W.2d 637, 640 (Tex.App.--Houston [14th Dist.] 1990, pet. ref'd). Jackson is distinguishable from the facts of this case because the defendant met the requirements of Rule 612(a) by asking the officer whether he had made a statement to the defendant after observing the intoxilyzer result. When the officer denied making any statement, extrinsic evidence of it became admissible under Rule 612(a). Jackson, 756 S.W.2d at 83-84. During cross-examination of Barton, Appellant did not tell him of the contents of the statement, or tell him of the time and place and to whom it was made as required by Rule 612(a). Because Appellant failed to lay the proper predicate for introduction of the inconsistent statement, extrinsic evidence of the statement was properly excluded by the trial court. TEX.R.CRIM.EVID. 612(a); Alvarez-Mason, 801 S.W.2d at 595; Allen, 788 S.W.2d at 640.

Alternatively, Appellant contends that Brumley's testimony was admissible under Rule 803(1), and he again relies upon Jackson v. State for support. Although the defendant in Jackson asserted that certain testimony was admissible as both a present sense impression and as impeachment by a prior inconsistent statement, the Court of Appeals held only that the statement was admissible to impeach the officer under TEX.R.CRIM.EVID. 612(a). Jackson, 756 S.W.2d at 84. Therefore, Jackson does not support Appellant's contention.

Rule 803(1), in relevant part, provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

TEX.R.CRIM.EVID. 803(1). Thus, a present sense impression is a comment made at the very time the declarant is receiving the impression, or immediately thereafter. TEX.R.CRIM.EVID. 803(1); see Rabbani v. State, 847 S.W.2d 555, 560 (Tex.Crim.App.1992). The rationale for the exception stems from the statement's contemporaneity, not its spontaneity. Rabbani, 847 S.W.2d at 560. In a case interpreting TEX.R.CIV.EVID. 803(1), which is identical to TEX.R.CRIM.EVID. 803(1), it was noted that the present sense impression exception requires an even closer time proximity than the excited utterance exception. Urquhart v. Antrum, 776 S.W.2d 595, 597 (Tex.App.--Houston [14th Dist.] 1988, no writ).

Statements of present sense impression possess the following safeguards which render them reliable: (1) the report at the moment of the thing then seen, heard, etc., is safe from any error from defect of memory of the declarant; (2) there is little or no time for calculated misstatement; (3) the statement will usually be made to another--the witness who reports it--who would have equal opportunity to observe and hence to check a misstatement. Rabbani, 847 S.W.2d at 560. Consequently, it is believed that such comments, strictly limited to reports of present sense-impressions, have such exceptional reliability as to warrant their inclusion within the hearsay exception for spontaneous declarations. Id.

We will first address the question whether Barton's statement is a present sense impression within the meaning of Rule 803(1). In making that determination, it is important to consider the nature of the statement and the context in which it was...

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  • Russo v. State
    • United States
    • Texas Court of Appeals
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    ...time is sufficient to reduce the hearsay danger of faulty memory and insincerity." Goode, § 803.2 (citing Beauchamp v. State, 870 S.W.2d 649, 653 (Tex.App.-El Paso 1994, pet. ref'd))). "A person who is observing or experiencing something may explain or describe it to someone else over the t......
  • Valmana v. State
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    ...167 (Tex. App.—Houston [14th Dist.] 1987, no pet.) (holding thirty-minute lapse of time is not too long); Beauchamp v. State , 870 S.W.2d 649, 653 (Tex. App.—El Paso 1994, pet. ref'd) (declaring that no per se rule exists for determining whether too much time has passed between the making o......
  • Fischer v. State
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    ...declarant's statements as a present sense impression because they "express an opinion or conclusion"); Beauchamp v. State, 870 S.W.2d 649, 652 (Tex.App.-El Paso 1994, pet. ref'd) ("We do not believe that a statement of opinion about a condition or event, as opposed to a statement of descrip......
  • Fischer v. State
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    • October 31, 2006
    ...that she was afraid of the appellant because "[the statements] express an opinion or conclusion . . . ."); Beauchamp v. State, 870 S.W.2d 649, 652 (Tex.App.-El Paso 1994, pet. ref'd) ("We do not believe that a statement of opinion about a condition or event, as opposed to a statement of des......
  • Request a trial to view additional results
11 books & journal articles
  • Evidence
    • United States
    • James Publishing Practical Law Books Texas Criminal Lawyer's Handbook. Volume 1-2 Volume 2
    • May 5, 2022
    ...that the statement is no longer contemporaneous, then the statement does not properly fall within this exception. Beauchamp v. State, 870 S.W.2d 649 (Tex.App.—El Paso 1994, pet. ref’d ). Furthermore, the statement will not properly fall within this exception where it expresses an opinion (r......
  • Evidence
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2019 Contents
    • August 16, 2019
    ...that the statement is no longer contemporaneous, then the statement does not properly fall within this exception. Beauchamp v. State, 870 S.W.2d 649 (Tex.App.—El Paso 1994, pet. ref ’d ). Furthermore, the statement will not properly fall within this exception where it expresses an opinion (......
  • Evidence
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2020 Contents
    • August 16, 2020
    ...that the statement is no longer contemporaneous, then the statement does not properly fall within this exception. Beauchamp v. State, 870 S.W.2d 649 (Tex.App.—El Paso 1994, pet. ref ’d ). Furthermore, the statement will not properly fall within this exception where it expresses an opinion (......
  • Evidence
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2021 Contents
    • August 16, 2021
    ...that the statement is no longer contemporaneous, then the statement does not properly fall within this exception. Beauchamp v. State, 870 S.W.2d 649 (Tex.App.—El Paso 1994, pet. ref ’d ). Furthermore, the statement will not properly fall within this exception where it expresses an opinion (......
  • Request a trial to view additional results

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