Gelinas v. State
| Decision Date | 12 August 2015 |
| Docket Number | No. 08-09-00246-CR,08-09-00246-CR |
| Court | Texas Court of Appeals |
| Parties | JAMES HENRY GELINAS, Appellant, v. THE STATE OF TEXAS, Appellee. |
Appeal from County Court at Law No. 1 of El Paso County, Texas
(TC # 20070C04062)
James Henry Gelinas appeals his conviction of driving while intoxicated. A jury found Appellant guilty and the trial court assessed his punishment at a $1,000 fine and 180 days in jail, probated for fifteen months. On June 15, 2011, we issued an opinion reversing the trial court's judgment based on a finding of charge error. Gelinas v. State, No. 08-09-00246-CR, 2011 WL 2420858 (Tex.App.--El Paso June 15, 2011). Finding that the charge error did not result in egregious harm, the Court of Criminal Appeals reversed our judgment and remanded with instructions to address Appellant's remaining points of error. Gelinas v. State, 398 S.W.3d 703 (Tex.Crim.App. 2013). We affirm.
FACTUAL SUMMARY
DPS Trooper Diego Marquez was on routine patrol in El Paso County at around midnight when he observed a Bronco/Blazer-type vehicle make a right turn onto FM 1281 from a parking-lot driveway. Marquez believed that a traffic violation had occurred because the driver, later identified as Appellant, did not use a turn signal. At trial, he admitted that his conclusion was erroneous because it was no longer a violation for a driver to fail to use a signal when turning out of a private driveway onto a street. Marquez drove past the vehicle and saw in his rear view mirror that the license plate light was not white. He described the light as being red and did not recall stating during an earlier administrative hearing that the light was "amber-colored." Marquez turned his patrol unit around and initiated a traffic stop. He walked up to the driver's side window and told Appellant why he had stopped him. Appellant's eyes were bloodshot, his speech was slurred, and he had an odor of alcoholic beverages on his breath. Marquez also noted that Appellant's reactions were slow when he asked Appellant to produce his driver's license and insurance. Appellant told Marquez he had been at a bar and had "at least four" beers. Later during the encounter, Appellant admitted he had drunk six beers.
At Marquez's request, Appellant performed three standardized field sobriety tests (SFSTs): the horizontal gaze nystagmus test (HGN), the walk and turn, and the one-leg stand. On the HGN test, Appellant displayed six out of six possible clues. He displayed three out of eight possible clues on the walk-and-turn test and three out of four clues on the one-leg stand test. The trial court admitted into evidence a video recording (State's Exhibit 1) which began when Marquez pulled over Appellant's vehicle and concluded when he placed him under arrest for DWI. The video shows Appellant performing the SFSTs. It also shows that Appellant's wife, Mariko Gelinas, arrived at the scene. At one point, Marquez overheard Ms. Gelinas tell Appellant to not perform the breath test. Marquez told Ms. Gelinas to stop telling Appellant what to do or he would arrest her for obstruction of justice.
Based on his observations of Appellant at the scene, the presence of the clues from the SFSTs indicating Appellant's physical and mental faculties were impaired, and Appellant's admission that he had been drinking beer, Marquez concluded that Appellant was intoxicated. Marquez placed Appellant under arrest and read him the statutory warnings. Appellant did not respond when Marquez asked him whether he would provide a breath specimen for testing so Marquez indicated on the DIC-24 form that Appellant had refused to sign the form or provide a breath specimen.
Mariko Gelinas testified that she was on the phone with Appellant when he was stopped and she went to the scene to provide insurance papers for the vehicle. She told Appellant not to worry and she would get him an attorney. She denied telling him not to do the breath test. Several photographs taken by Ms. Gelinas, including a photo of the vehicle's license plate, were admitted into evidence. She testified on direct examination that the license plate light appeared white. When shown a photo of the vehicle's license plate on cross-examination, Ms. Gelinas testified that the light looked more orange than red.
Appellant testified on his own behalf. He was a truck driver at the time of his arrest for DWI and had a commercial driver's license. Appellant was talking to his wife on the telephone when Trooper Marquez pulled him over. Appellant explained that it took him several seconds to locate his insurance papers because the handle for the glove box was broken and it was dark inside of the vehicle. Appellant's wife arrived at the scene and she gave Marquez the insurance papers. Appellant admitted telling Marquez that he had drunk "at least four" beers, but Marquez did not ask him over what time period he had drunk those beers. Appellant testified that he drank the beers between 7 p.m. and 11 p.m. that evening and he had eaten at about 8 o'clock. When the trooper asked him if he had at least a six-pack, Appellant simply agreed with him "toget this over with." He explained that his eyes were bloodshot because smoking was permitted at the bar and there had been a lot of smoke in the air. Appellant also testified that Marquez did not read the statutory warning to him, so he simply shrugged and did not reply when the officer asked him to provide a breath specimen. If he had known his license would be suspended, he would have consented.
ADMISSION OF STATE'S EXHIBIT 1
Issues One and Three relate to the admission of State's Exhibit 1. In Issue One, Appellant contends that the trial court abused its discretion by admitting into evidence State's Exhibit 1 because Marquez's alteration of the recording rendered it inaccurate, unreliable, and impaired his ability to present his defensive theories that his traffic stop was illegal and Marquez did not read the DIC-24 to Appellant. Appellant argues in Issue Three that admission of State's Exhibit 1 violates the "best evidence rule."
Preservation of Error
The State contends that Appellant's contentions raised in Issue One are waived because he did not make these objections at trial. The Rules of Appellate Procedure require a party to preserve error by making a timely and specific objection. TEX.R.APP.P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); Peralta v. State, 338 S.W.3d 598, 609 (Tex.App.--El Paso 2010, no pet.). To preserve error related to the admission of evidence, the complaining party must object and secure an adverse ruling in a hearing held outside of the jury's presence or when the evidence is offered at trial. See TEX.R.APP.P. 33.1; TEX.R.EVID. 103(a)(1).1 Anobjection stating one legal theory may not be used to support a different legal theory on appeal. Dixon v. State, 2 S.W.3d 263, 273 (Tex.Crim.App. 1999)(op. on reh'g). When a party obtains a ruling from the trial court on his objections to evidence in a hearing outside the presence of the jury, he is not required to repeat those objections when the evidence is offered before the jury. See TEX.R.EVID. 103(b); Geuder v. State, 115 S.W.3d 11, 15 (Tex.Crim.App. 2003).
At the suppression hearing, the State offered into evidence two video recordings as State's Exhibit 1.2 Appellant objected to the video recordings "under the Best Evidence Rule" because they are copies, not the original recording. Marquez testified that he made the first DVD from the original recording shortly after the arrest and submitted it to the District Attorney's Office. He made the second DVD at the request of the D.A.'s Office. Marquez specifically testified that he had reviewed the recordings and they fairly and accurately depicted the events shown that night. The trial court expressly overruled Appellant's objection that State's Exhibit 1 is not the original recording.
At trial, Marquez identified State's Exhibit 1 as a copy of the traffic stop and he testified, as he had in the suppressing hearing, that he had reviewed the recording, it fairly and accurately depicted the traffic stop, and it had not been altered since he created the DVD from the original recording. On voir dire examination, Marquez explained that State's Exhibit 1 is not the original tape that was in the recording unit in his vehicle and the original recording is kept by DPS. The original tape contains the recordings of all of the traffic stops Marquez made that evening both before and after the stop of Appellant. State's Exhibit 1 contains only the recording of Appellant's traffic stop and it shows all of the events which occurred from the moment Marquez turned on the patrol unit's emergency lights until he placed Appellant under arrest andadministered the Miranda3 warnings. Marquez explained that the original tape is retained by DPS and is "deleted" after a certain time period. When asked whether the original tape has been destroyed, Marquez replied that he thought it had been but was not sure. Appellant made the following objection:
Your Honor, again, I would object if they've edited out when Ms. Gelinas gets threatened with the arrest and what happened prior to the stop. This should have been on the tape and what happened afterwards. It's not an accurate tape and I think my client would be severally [sic] damaged by letting in an incomplete tape of the events of that night, especially when there was no legal justification to destroy the evidence that was taken. I'm actually kind of shocked that that's their practice.
The trial court overruled Appellant's objections.
Later during the trial, Marquez testified that the original videotape depicted him reading the DWI statutory warning to Appellant, but State's Exhibit 1 does not include that portion of original videotape because it was DPS's standard practice to only include the "traffic stop" on the video submitted with the report. In a hearing outside of the jury's presence, Appellant...
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