Evans, David Joseph v. State

• Court: Court of Appeals of Texas
• Decided: June 13, 2006
• Docket: 14-05-00332-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 13, 2006

Affirmed and Memorandum Opinion filed June 13, 2006.

In The

Fourteenth Court of Appeals

_______________

NO. 14-05-00332-CR

DAVID JOSEPH EVANS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 6

Harris County, Texas

Trial Court Cause No. 1249625

M E M O R A N D U M   O P I N I O N

David Joseph Evans appeals a conviction for driving while intoxicated^[1] (ADWI@) on the grounds that: (1) the trial court erred in denying his motion to suppress the audio portion of a videotape recording; (2) the prosecution failed to correct a misrepresentation made by the arresting police officer on cross-examination; and (3) the trial court erroneously excluded an expert witness=s testimony.  We affirm.

Appellant=s first issue contends that the audio portion of the roadside videotape recording^[2] was inadmissible because: (1) it was hearsay^[3]; (2) the arresting officer=s verbal narrative on the videotape is the functional equivalent of an offense report, which is excluded from the public records exception to the hearsay prohibition^[4]; and (3) the narrative was not admissible under the present sense impression exception to the hearsay rule.^[5]

We review a trial court=s decision to admit or exclude evidence under an abuse of discretion standard.  Shuffield v. State, ___ S.W.3d ___, 2006 WL 335911, at *9 (Tex. Crim. App. 2006).  However, the admission of inadmissible evidence does not require reversal if the same facts are proved by other proper testimony.  Ramon v. State, 159 S.W.3d 927, 931 (Tex. Crim. App. 2004).

Here, the only portion of appellant=s brief specifying the objectionable narrative statements is in the statement of facts:

The tape shows that, several times during the interview, Trooper Martinez [the arresting officer] stepped away from the appellant and narrated his conclusions about the appellant=s performance.  After the abortive attempt at the HGN test, Martinez stated on tape that the appellant Arefuses to submit to the HGN@ (Tape 1:53:27).  He added that the appellant Awon=t follow directions@ (Tape 1:53:34).  After the Awalk and turn@ test, Martinez said, ALet me just narrate here@ (Tape 1:56:58).  Instead of simply stating the number of steps the appellant took, Martinez stated his conclusion that Asubject took wrong number@ of steps (Tape 1:57:01).  Following the one-leg stand, Martinez dictated the appellant=s perceived failures on that test (Tape 1:59:54).  He added that the appellant Astaggers as he walks,@ a debatable conclusion which did not appear to relate to a particular test (Tape 2:00:30).

However, the videotape was admitted at trial after the jury had already heard Martinez testify to virtually the same matters on direct examination without objection.^[6]  Because the complained-of narrative on the videotape was therefore merely cumulative of Martinez=s testimony on direct examination, any error in its admission does not require reversal.  See id.  Accordingly, appellant=s first issue is overruled.

Appellant=s second issue argues that his conviction should be reversed because misleading testimony given by Martinez on cross-examination, that appellant=s performance on field sobriety tests was evidence of an alcohol concentration more than .08, was not corrected by the State.  However, appellant cites no authority imposing a duty on prosecutors to correct incorrect or inadmissible testimony elicited by a defendant on cross-examination of a prosecution witness.^[7]  Accordingly, this issue presents nothing for our review and is overruled.

Appellant=s third issue complains that the trial court violated his right to present a complete defense by prohibiting his presentation of an expert witness=s testimony to correct the erroneous assertion by Martinez that appellant=s field sobriety testing provided proof beyond a reasonable doubt of a blood alcohol concentration above .08.

A trial court=s decision to admit or exclude scientific evidence is reviewed for abuse of discretion.  Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000).  A witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise on scientific, technical, or other specialized knowledge if it will assist the trier of fact to understand the evidence or to determine a fact in issue.  Tex. R. Evid. 702.

  Outside the presence of the jury, appellant established that this witness would testify that he had measured appellant=s breath alcohol concentration over a period of three to four hours while appellant consumed five beers, which is the amount of alcohol he admitted to having consumed before his arrest.  However, because appellant=s brief does not explain how the witness was qualified as an expert on blood alcohol concentration or how his testing methodology was scientifically reliable and relevant based on its similarity to the facts in issue,^[8] it affords us no basis to conclude that the trial court abused its discretion in excluding this testimony.  Accordingly, appellant=s third issue is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed June 13, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

Do not publish C Tex. R. App. P. 47.2(b).

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^[1]           A jury convicted appellant, and the trial court assessed a 180 day sentence, but suspended it, assessed a fine of $300, and  placed appellant on community supervision for one year.

^[2]           Appellant does not contest the admission of the video portion of the recording.

^[3]           Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted.  Tex. R. Evid. 801(d).

^[4]           Public records and reports, in any form, are excepted from the hearsay exclusion if they set forth matters observed under a legal duty to report such matters, excluding, in criminal cases, matters observed by police officers and other law enforcement personnel. Tex. R. Evid. 803(8)(B). The exclusionary clause, which excludes from this hearsay exception matters observed by police officers, applies where possible impairment of judgment is implicated, such as observations made by officers at the scene of a crime.  See Pondexter v. State, 942 S.W.2d 577, 585 (Tex. Crim. App. 1996).

^[5]           A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, is not excluded by the hearsay rule, even though the declarant is available as a witness.  Tex. R. Evid. 803(1).  The present sense impression exception to the hearsay rule is based upon the underlying premise that the contemporaneity of the event and the declaration ensures reliability of the statement.  Brooks v. State, 990 S.W.2d 279, 287 (Tex. Crim. App. 1999). 

^[6]           For example, when questioned by the State about his inability to perform the HGN test on appellant, Martinez stated, AThe [appellant] was uncooperative.  He would not follow the instructions.  He would not follow the tip of the pen with his eyes.  He just looked straight ahead.@  In answering questions about appellant=s performance on the walk and turn test, Martinez indicated that appellant Atook the wrong number of steps.@  Martinez also stated that appellant  had difficulty balancing when being instructed about the test, could not walk heel to toe, stepped off the line, and used his arms for balance.  Finally, Martinez testified that appellant failed both the walk-and-turn test and the one-leg stand test.

^[7]           Instead, appellant relies on authority holding that the prosecution=s deliberate deception by affirmatively presenting known false evidence violates a defendant=s due process rights.  See Banks v. Dretke, 540 U.S. 668, 694 (2004).  In addition, defense counsel did not object to the testimony, request an instruction to disregard, request a mistrial, or otherwise provide the trial court an opportunity to make a ruling on the matter.

^[8]           The jury charge in this case defined intoxicated as Anot having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body@ and did not include any quantitative definition of intoxication.