Sims v. State

• Citation: 735 S.W.2d 913
• Decision Date: 28 July 1987
• Docket Number: No. 05-86-00902-CR,05-86-00902-CR
• Parties: Patrick Michael SIMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 913

735 S.W.2d 913

Patrick Michael SIMS, Appellant, v. The STATE of Texas, Appellee.

No. 05-86-00902-CR.

Court of Appeals of Texas,

Dallas.

July 28, 1987.

Charles W. Tessmer, Dallas, for appellant.

Leslie McFarlane, Dallas, for appellee.

Before WHITHAM, BAKER and LAGARDE, JJ.

LAGARDE, Justice.

Patrick Michael Sims appeals from his conviction for driving while intoxicated. Punishment was assessed at thirty days confinement in the Dallas County jail and a $400 fine. We affirm.

In his first point of error, appellant contends that the trial court erred in overruling his exception to the information and in refusing to submit to the jury special verdict forms. The information charged that appellant:

did then and there drive and operate a motor vehicle in a public place in Dallas County, Texas, to-wit: a street and highway, while intoxicated, in that the defendant did not have the normal use of his mental and physical faculties by reason of the introduction of alcohol, into defendant's body, and defendant had an alcohol concentration of at least 0.10.

Appellant contends that the information improperly alleged two offenses in a single count and that the information, therefore, should have been quashed. He also contends that separate verdict forms should have been submitted to the jury, one asking whether the jury found beyond a reasonable doubt that appellant was intoxicated in that he did not have normal use of his mental or physical faculties and another asking whether the jury found beyond a reasonable doubt that appellant had an alcohol concentration of at least 0.10. No error is shown.

Article 6701l-1(b) of the Texas Revised Civil Statutes provides that a person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place. Tex.Rev.Civ.Stat.Ann. art. 6701l-1(b) (Vernon Supp.1987). "Intoxicated" is defined as:

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body; or

(B) having an alcohol concentration of 0.10 or more.

Tex.Rev.Civ.Stat.Ann. art. 6701l-1(a)(2)(A) & (B) (Vernon Supp.1987). Thus, although the statute provides two ways by which the offense can be proven, only one act is proscribed: driving while intoxicated. See Russell v. State, 710 S.W.2d 662, 663-64 (Tex.App.--Austin 1986, pet. ref'd). Where a statute sets forth several ways by which an offense may be committed, they may be charged conjunctively in one count in the indictment or information. Sidney v. State, 560 S.W.2d 679, 681 (Tex.Crim.App.1978); Garcia v. State, 537 S.W.2d 930, 932 (Tex.Crim.App.1976); Salazar v. State, 687 S.W.2d 502, 504 (Tex.App.--Dallas 1985, pet. ref'd). Thus, the trial court did not err in refusing to quash the information.

Nor was appellant entitled to submission of special verdict forms. Texas law requires that the verdict in criminal actions be general, see Tex.Code Crim.Proc.Ann art. 37.07, § 1(a) (Vernon 1981), and, other than in capital murder cases, a court has no authority to submit special issues to a jury in a criminal case. See Stewart v. State, 686 S.W.2d 118, 124 (Tex.Crim.App.1984). Thus, where, as here, the charging instrument alleges conjunctively different ways of committing an offense and the jury is charged disjunctively, a general verdict finding a defendant guilty as charged in the indictment is proper and will support a conviction under either theory which is supported by the evidence. See Vasquez v. State, 665 S.W.2d 484, 486-87 (Tex.Crim.App.1984); Reardon v. State, 695 S.W.2d 331, 333-34 (Tex.App.--Houston [1st Dist.] 1985, no pet.). Accordingly, we overrule appellant's first point of error.

In his second point of error, appellant contends that the trial court erred in admitting into evidence a videotape made after his arrest because the state failed to lay a proper predicate for admission. A proper predicate for admissibility of a sound recording requires: (1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement. Edwards v. State, 551 S.W.2d 731, 733 (Tex.Crim.App.1977); McEntyre v. State, 717 S.W.2d 140, 146 (Tex.App.--Houston [1st Dist.] 1986, no pet.). The same requirements have been applied to videotapes. Roy v. State, 608 S.W.2d 645, 649 (Tex.Crim.App.1980). Before the videotape was played, Officer Baker, who was present during the videotaping but was not the operator of the machine, testified that the recording machine was "basically a VCR", that it was capable of making an accurate recording, that the videotape truly and accurately represented the videotaping session, that no changes, alterations, or deletions had been made in the videotape, that all voices on the videotape were identified, that, when appellant refused to waive his Miranda ¹ rights, he was asked no further questions about the offense, and that, after the videotaping was completed, "Officer Hargis removed the tape from the machine and gave it to me and I put it in this box ... and then it's put into a locked box there in Lew Sterrett."

Appellant attacks the adequacy of the predicate laid on two grounds. First, he contends that the state failed to show that Hargis, whom Baker testified was the videotape machine operator, was competent to operate the machine. We agree that the state failed to produce direct evidence that Hargis was competent to operate the videotape machine. Hargis testified that he was a qualified intoxilyzer operator, but he did not testify concerning his ability to operate the videotape machine. Baker testified that Hargis was "a competent operator" of the machine; however, appellant's objection to this testimony was sustained and the state failed to present other evidence to satisfy this prong of Edwards. Nevertheless, as pointed out in Roy, videotapes convey a greater indicia of reliability than either film or sound tapes standing alone and at least some of the predicate requirements may be inferred from the testimony. Roy, 608 S.W.2d at 645. See Edwards, 551 S.W.2d at 733 ("at least some of the [predicate] requirements can be inferred from the testimony ... [f]or example, if a person who is in a position to hear a conversation testifies that he made a tape recording of that conversation and found it to coincide with what he heard the parties say, then it goes without saying ... that the 'operator of the device was competent' "). In the present case, the testimony outlined above was sufficient evidence from which the trial court could infer that Hargis was competent to operate the videotape machine. Thus, the state did not fail to lay a proper predicate for admission of the videotape into evidence in this regard.

Appellant also contends that because Baker was not the videotape machine operator, his testimony was inadequate to satisfy the remaining requirements for a proper predicate to admission of the videotape. We disagree. Motion pictures and photographs are admissible provided there is proof of their accuracy as a correct representation of the subject at a given time and provided they have material relevance to a disputed issue. Darden v. State, 629 S.W.2d 46, 48-49 (Tex.Crim.App.1982). The witness who verifies such exhibits need not be the photographer, nor need he have any knowledge concerning the way in which the photograph was made. Darden, 629 S.W.2d at 49. Because it is the accuracy and relevancy of an exhibit which is at issue in determining its admissibility, we see no reason why the Darden holding should not be applied to videotapes as well. Accordingly, we hold that, even though Baker was not the videotape machine operator, he was qualified to establish the predicate for admissibility of the videotape and there is no requirement that the videotape machine operator himself establish the predicate for admissibility. We overrule appellant's second point of error.

In his third point of error, appellant contends that the trial court erred in "failing to enforce appellant's Miranda right to terminate the video/audio taped interview." ² He argues that once he expressed his desire to speak with an attorney during the videotaping session after his arrest, the videotaping session should have been terminated and, because it was not, the trial court erred in admitting the videotape into evidence and playing it before the jury at trial. The videotape ³ shows that the appellant was taken into the videotaping room, asked to state his name, and was then given the Miranda warnings. Appellant acknowledged that he understood his rights. The police officer then asked appellant for his address and appellant responded by asking "Do I need my attorney for that?" The police officer responded "No, these are just basic questions" and proceeded to ask appellant his height, weight, place of birth, nicknames, social security number, employer, employer's address, and whether appellant was sick, injured, diabetic or epileptic, or whether appellant had false teeth, a glass eye, any artificial limbs, or other physical impairments. The police officer also asked appellant when he last ate, what he ate, the date, day, and time. After appellant answered these questions, the police officer asked if appellant would waive his rights and answer questions concerning the offense. Appellant responded that he would not and no questions concerning the offense were asked.

In his argument under this point of error, appellant contends that the "personal data" questions "are as indicative [of] being under...