Fischer v. State

• Decision Date: 16 January 2008
• Docket Number: No. PD-0043-07.,PD-0043-07.
• Citation: 252 S.W.3d 375
• Parties: John Robert FISCHER, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

252 S.W.3d 375

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

No. PD-0043-07.

Court of Criminal Appeals of Texas.

January 16, 2008.

Windi Akins, Winston E. Cochran Jr., Houston, for appellant.

Eric Kugler, Asst. D.A., Houston, Jeffrey Van Horn, State's Attorney, Austin, for state.

OPINION

COCHRAN, J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON, and HOLCOMB, JJ., joined.

This case presents a novel question in Texas evidentiary law: Are a law enforcement officer's factual observations of a DWI suspect, contemporaneously dictated on his patrol-car videotape, admissible as a present sense impression exception to the hearsay rule under TEX.R. EVID. 803(1)?¹ They are not. An officer may testify in the courtroom to what he saw, did, heard, smelled, and felt at the scene, but he cannot substitute or augment his in-court testimony with an out-of-court oral narrative. This calculated narrative in an adversarial setting was a "speaking offense report." It was not the type of unreflective, street-corner statement that the present sense impression exception to the hearsay rule is designed to allow. We therefore agree with the Fourteenth Court of Appeals, which had held the same.²

I.

At about 1:40 a.m. on May 29, 2004, DPS Trooper Martinez turned on his dashboard-mounted video camera and announced, on tape, that he was pulling over a driver who wasn't wearing a seatbelt. After the driver, appellant, parked his truck in his apartment complex parking lot, Trooper Martinez approached appellant and began questioning him. All of that questioning was recorded through Trooper Martinez's body microphone and captured on camera.

Trooper Martinez asked for appellant's driver's license and insurance; appellant responded that he had just moved. The trooper then asked appellant whether he had "any alcohol in the car," and quickly added, "I smell alcohol." Trooper Martinez then asked appellant, "How much alcohol have you had this evening?" And appellant replied, "Three wines." Trooper Martinez told appellant to stay where he was, and the trooper walked back to his patrol car and dictated into his microphone that appellant had "glassy, bloodshot eyes" and "slurred speech." The trooper stated that he had smelled "the strong odor of alcoholic beverage."

Trooper Martinez then walked back to appellant and asked him if there was any reason why he was not wearing a seatbelt. Appellant said that he was "depressed" over his recent divorce. Trooper Martinez asked appellant if he had any weapons or drugs. Appellant said "No," but Trooper Martinez opened the driver's door of appellant's truck and got inside to make a cursory search. Finding nothing, the trooper got back out and told appellant, "I'm going to conduct a small exam of your eyes." He directed appellant to stand outside the range of the video camera and administered a horizontal gaze nystagmus (HGN) test.

After the HGN test was completed, Trooper Martinez again left appellant and returned to his patrol car and recorded the following observations:

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.

Trooper Martinez also dictated into his microphone: (1) he stated that he had seen a "wine opener" in appellant's truck; (2) he repeated that there was a strong odor of alcohol on appellant's breath; and (3) he again noted that appellant had glassy, bloodshot eyes and "slurred speech."

The trooper then told appellant to stand in front of the patrol car and asked him to perform field sobriety tests. After appellant performed the heel-to-toe test, Trooper Martinez again told appellant to "stay right here," while he returned to his patrol car and dictated on tape that "subject gave several clues," including the fact that appellant had started too soon, lost his balance while being given instructions, failed to touch his heel to his toe, "stepped off the line two times," made an "improper turn," and used his hands for balance.

Trooper Martinez returned to where appellant was standing and told him to perform a "one-leg stand" test. After that test was completed, the trooper told appellant to remain where he was, and the trooper once again returned to his patrol car where he verbally recorded that appellant "gave several clues" to intoxication and noted that appellant swayed, hopped, and put his foot down twice. Trooper Martinez recorded that he had given appellant "a second chance to do it," but appellant "indicated the same clues." Trooper Martinez then dictated: "Subject is going to be placed under arrest for DWI." The videotape then shows Trooper Martinez returning to appellant, saying, "I believe you are drunk," and arresting him.

After appellant was charged with DWI, he filed a motion to suppress the audio portion of the patrol-car videotape, claiming that it contained Trooper Martinez's "bolstering, self-serving statements about what he was allegedly doing and seeing." It was "a highly prejudicial and inflammatory narrative" of what Trooper Martinez would have the viewer believe was taking place. The trial judge denied appellant's motion and concluded that the audio narrative was admissible as a "present sense impression."³ Appellant then pled nolo contendere and appealed the trial court's ruling on his motion to suppress Trooper Martinez's orally recorded factual observations during his DWI investigation.

The court of appeals concluded that the trial court had erred. It held that Trooper Martinez's recorded commentary did not qualify as a present sense impression:

Instead, his comments are a calculated narrative statement in which Martinez does not merely explain or describe events, but participates in and even creates some of the events he reports in the course of collecting evidence.... It therefore appears that Martinez recorded his comments not as an objective observer, but as a law enforcement officer, as a lay witness, and as an expert witness cataloging evidence and opinions for use in [appellant's] prosecution.⁴

Put bluntly, "Martinez's narrative is the functional equivalent of a police offense report[.]"⁵

We granted the State's petition for review to decide this important issue of state evidentiary law which, we understand, has arisen in several other cases as well.⁶

II.

The hearsay doctrine, codified in Rules 801 and 802 of the Texas Rules of Evidence, is designed to exclude out-of-court statements offered for the truth of the matter asserted that pose any of the four "hearsay dangers" of faulty perception, faulty memory, accidental miscommunication, or insincerity.⁷ The numerous exceptions to the hearsay rule set out in Rules 803 and 804⁸ are based upon the rationale that some hearsay statements contain such strong independent, circumstantial guarantees of trustworthiness that the risk of the four hearsay dangers is minimal while the probative value of such evidence is high.⁹ The twenty-four hearsay exceptions listed in Texas Rule 803 may be roughly categorized into (1) unreflective statements, (2) reliable documents, and (3) reputation evidence. The rationale for all of the exceptions is that, over time, experience has shown that these types of statements are generally reliable and trustworthy.

The first set of hearsay exceptions, unreflective statements, are "street corner" utterances made by ordinary people before any thoughts of litigation have crystallized.¹⁰ These unreflective statements used to be called "res gestae," an imprecise Latin legalese term,¹¹ because the speaker was not thinking about the legal consequences of his statements. In most instances, the speaker was not thinking at all; the statement was made without any reflection, thought process, or motive to fabricate or exaggerate.¹²

One of those "unreflective statements" exceptions to the hearsay rule is defined in Rule 803(1), the 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.¹³

Statements that qualify under this exception are not excluded by the hearsay rule, even though the declarant is available.¹⁴

Texas was the first jurisdiction to recognize this exception by name,¹⁵ and its leading case, Houston Oxygen Co. v. Davis,¹⁶ is cited in the advisory committee's note to Federal Rule 803(1).¹⁷ The facts in that case are typical of those that support the exception. At trial, the passenger of a car going down the highway testified that he saw another car pass theirs going "sixty to sixty-five miles" an hour and that it was "bouncing up and down in the back and zig zagging."¹⁸ The passenger then testified that the driver of the car turned to him and said that "they must have been drunk, that we would find them somewhere on the road wrecked if they kept that rate of speed up."¹⁹ Sure enough, five miles down the road the speeding car hit another vehicle and caused the plaintiff's injuries. The Texas Supreme Court held that the passenger's recitation of what the driver said to him at the time the speeding car passed them was admissible as a present sense impression because "[i]t is sufficiently spontaneous to save it from the suspicion of being manufactured evidence. There was no time for a calculated statement."²⁰

The rationale for the exception is that the contemporaneity of the statement with the event that it describes eliminates all danger of faulty memory and virtually all danger of insincerity. This Court has previously explained that rationale:

If a person observes some situation or happening which is not at all startling or shocking in its nature, nor actually producing excitement in the observer, the observer may yet have occasion to comment on what he sees (or learns from other senses) at the very time that he is receiving the impression. Such a...