Fischer v. State

• Decision Date: 31 October 2006
• Docket Number: No. 14-05-00508-CR.,14-05-00508-CR.
• Citation: 207 S.W.3d 846
• Parties: John Robert FISCHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

207 S.W.3d 846

John Robert FISCHER, Appellant, v. The STATE of Texas, Appellee.

No. 14-05-00508-CR.

Court of Appeals of Texas, Houston (14th Dist.).

October 31, 2006.

COPYRIGHT MATERIAL OMITTED

Windi Akins, Houston, for appellant.

Eric Kugler, Houston, for appellee.

Panel consists of Chief Justice HEDGES and Justices YATES and GUZMAN.

MAJORITY OPINION

EVA M. GUZMAN, Justice.

This case presents a question that has never been fully addressed by Texas courts: whether a law enforcement officer's observations of a DWI suspect, dictated on videotape, are admissible as present sense impressions in the suspect's criminal prosecution.¹ Appellant John Robert Fischer was arrested for driving while intoxicated in violation of Texas Penal Code Ann. § 49.04 (Vernon 2003). The arresting officer videotaped the traffic stop during which he administered field sobriety tests to Fischer and dictated his observations and conclusions. After the trial court denied Fischer's motion to suppress the audio component of the videotape, Fischer entered a plea of no contest. On appeal, Fischer contends the trial court reversibly erred in admitting the officer's recorded commentary as a present sense impression because the evidence should have been excluded under Texas Rule of Evidence 803(8)(B) as the functional equivalent of an offense report.

We hold that a law enforcement officer may not avoid the restrictions on the evidentiary use of an offense report by simply dictating the substance of that report. Because we conclude the evidence at issue was erroneously admitted as a present sense impression, and that such error affected Fischer's substantial rights, we reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 29, 2004, Texas Highway Patrol Trooper Abel Martinez was on patrol when he observed Fischer driving without his seatbelt. After Fischer parked his pickup truck in the parking lot of his apartment complex, Martinez approached Fischer. A videotape mounted in Martinez's patrol car recorded the stop.

After informing Fischer that he had been stopped for not wearing a seatbelt, Trooper Martinez stated he smelled alcohol and asked Fischer whether he had any alcohol in the car; Fischer responded that he did not. When Martinez asked Fischer what he had been drinking, Fischer replied "three wines." Martinez then instructed Fischer to remain standing where he was, and Martinez returned to his patrol car. Martinez next verbally recorded that Fischer had "glassy, bloodshot eyes" and "slurred speech" and that he smelled "the strong odor of alcoholic beverage."

Martinez returned to Fischer and directed him to stand "where my light is." This area was off-camera. Martinez then administered a horizontal gaze nystagmus (HGN) test out of the camera's range. After completing the exam, Martinez repeated his instruction to Fischer to stand "where my light is." Martinez then returned to his patrol car and recorded the following statements: "Subject has equal pupil size, equal tracking, has a lack of smooth pursuit in both eyes, and has distinct nystagmus at maximum deviation in both eyes. Subject also has onset of nystagmus prior to forty-five degrees in both eyes." Martinez also verbally recorded that: (1) he saw a wine opener in the truck; (2) upon approaching Fischer's vehicle he smelled a strong odor of alcohol on Fischer's breath; and (3) Fischer had glassy, bloodshot eyes and slurred speech.

Next, Martinez directed Fischer to stand in front of Martinez's patrol car. Martinez administered a heel-to-toe test which was recorded on the videotape. At the conclusion of the test, Martinez told Fischer, "stay right here," and Martinez returned to his vehicle. He then verbally recorded that Fischer had given "several clues," including starting the test too early without being instructed to do so, losing his balance while being given instructions, failing to touch his heel to his toe, stepping off of the line, making an improper turn, and using his hands for balance.

Martinez again returned to Fischer and administered two "one-leg stand" tests. After the tests were completed, Martinez once again instructed Fischer to remain standing where he was and he returned to his patrol car. At his vehicle, Martinez verbally recorded that Fischer "gave several clues," including using his arms for balance, swaying, hopping, and putting his foot down twice. Martinez stated that he gave Fischer "a second chance to do it [and Fischer] indicated the same clues." Martinez concluded, "Subject is going to be placed under arrest for DWI." Martinez then returned to Fischer and arrested him for driving while intoxicated.

On May 4, 2005, Fischer filed a Motion to Suppress DWI Video in which he challenged the proposed evidentiary use of the audio portion of the videotape,² claiming that the audio contains "a highly prejudicial and inflammatory narrative of what [Martinez] would have the viewer to believe [he] was observing and/or what was taking place." According to Fischer, "These self-serving statements are hearsay, bolstering, and highly prejudicial . . . ." Following a hearing, the trial court denied Fischer's motion on the grounds that Martinez's narrative qualified as a present sense impression exception to the hearsay rule.³ Fischer subsequently entered into a plea agreement and pleaded nolo contendere. In accordance with the plea agreement, the trial court assessed punishment at 180 days' confinement, probated for one year, and a fine of $300.

II. ISSUE PRESENTED

In his sole issue, Fischer contends the trial court erred in admitting the audio portion of the videotape recording because it is hearsay and, contrary to the trial court's ruling, does not qualify under the present sense impression exception to the hearsay rule. Specifically, Fischer argues that the audiotaped narrative is the functional equivalent of a law enforcement officer's report of his observations, and is therefore inadmissible under Texas Rule of Evidence 803(8)(B).⁴ We interpret Fischer's issue as presenting two overlapping arguments: first, that the evidence is not admissible as present sense impression, and second, that the evidence consists of a law enforcement officer's observations of matters he had a duty to observe and report, which may not be admitted for the truth of the matters asserted in a criminal prosecution.

III. PRESERVATION OF ERROR

Because the State contends Fischer has not preserved error, we begin our analysis by first addressing this argument.

The State points out that an objection to the admission of evidence must specify and identify the grounds of the objection, and where only part of an exhibit is admissible, the appellant must have made a specific objection to the inadmissible part of the exhibit at trial to preserve his complaint on appeal. See Hernandez v. State, 599 S.W.2d 614, 617 (Tex.Crim.App.1980) (op. on reh'g); Riley v. State, 988 S.W.2d 895, 898 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (holding that the appellant's "conclusory objection to the entire audio portion [of the offered videotape] was not specific, and is inadequate to preserve this error for appeal"). Fischer concedes that some of Martinez's questions and Fischer's answers would be admissible⁵ and asks this court to order a new trial "with the audio portion of the scene tape [sic] redacted to exclude the improper hearsay." Because Fischer does not identify the objectionable portions of the recording by referring to lines on a transcript, elapsed time on the videotape, or by quoting the material, the State contends any error is waived. We disagree.

If the defendant's objection or motion to suppress is timely and sufficiently specific to inform the trial court of the nature of the complaint, the complaint is preserved for appeal. Ex parte Little, 887 S.W.2d 62, 65-66 (Tex.Crim.App.1994) (addressing objections); Porath v. State, 148 S.W.3d 402, 413 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (applying the same standard to motions to suppress). At the hearing on his motion to suppress, Fischer clarified that he objected to the narrative portions of the audio recording, and the record demonstrates the trial court understood his objections:

Counsel: [My objection to the offered portion of the tape is that Martinez] starts a narrative even before he pulls Mr. Fischer over. He narrates outside the presence of the defendant, gets in his car, makes all these—I mean, grandiose statements that really appear to be being read from something that he's got in his car. We can't see the speaker. All we get to hear is his narration . . . I counted five different places where he—he starts his narrative before he stops the car . . . He goes into his car and makes a greater narrative outside the presence of the video recorder and outside the presence of the defendant.

The Court: You're talking about when he talks about what he observed regarding seat belt, slurred speech, red bloodshot eyes, I smelled the odor of alcohol?

Counsel: And after every test he performed, he leaves the defendant, goes and gets in his car and narrates.

The Court: Okay. . . .

* * * * *

Counsel: It's the same reason we don't let in offense reports, officers put their present sense impressions on the offense reports. We don't let those in and that's because of the—the prejudicial effect far outweighs any probative value. Judge, I'm not clear if on the record, if your—if I have a ruling on that yet and it was in my motion, but I didn't argue it.

The Court: It probably wasn't on the record. I did understand that to be— it wasn't clear. I did understand that to be your objection, and that is also overruled.

After reviewing the videotape and the transcript of the hearing on the motion to suppress, we conclude the trial court (a) understood that Fischer objected to admission of Martinez's narrative recitation of his observations, (b) understood the grounds for Fischer's objections, and (c) ruled on the objections....