Green v. State

745 S.W.2d 477, 1988 Tex. App. LEXIS 205, 1988 WL 7050
Court of Appeals of Texas·Decided February 4, 1988·No. 13-87-168-CR·Published·Cited by 9 cases

Opinions

OPINION

KENNEDY, Justice.

The appellant, Woodrow Green, was tried for the offense of driving while intoxicated, convicted by a jury and sentenced to 500 days in the county jail, with a $1,500.00 fine. Appellant claims that his conviction should be reversed because his arresting officer failed to make a videotape recording of him in violation of Tex.Rev.Civ.Stat.Ann. art. 6701l-1 note, Acts 1983, ch. 303, § 24 (Vernon Supp.1988), and he was denied an opportunity to complete discovery before trial. We affirm.

The appellant was arrested for driving while intoxicated in Victoria County, Texas, which has a population of greater than 25,000. He was then taken to the Victoria County Sheriffs Office where he was given a breath intoxilyzer test, recording an alcohol concentration of 0.26. The arresting officer testified that appellant was not then videotaped because of a department [478] policy against recording suspects who register high on the breath intoxilyzer test.

In his first point of error, appellant complains that his conviction should be reversed on the ground that the State consciously suppressed evidence which might have been favorable to him by failing to make a videotape recording in violation of § 24 of the above statute, which provides:

(a) Each county with a population of 25,-000 or more according to the most recent federal census shall purchase and maintain electronic devices capable of visually recording a person arrested within the county for an offense under Article 6701l -1, Revised Statutes, or Subdivision (2), Subsection (a), Section 1905, Penal Code.
(b) The sheriff of the county shall determine upon approval by the county commissioners court the number of devices necessary to ensure that a peace officer arresting a defendant for an offense listed in Subsection (a) of this section may visually record the defendant’s appearance within a reasonable time after the arrest.
(c) The fact that an arresting officer or other person acting on behalf of the state failed to visually record a person arrested for an offense listed in Subsection (a) of this section is admissible at the trial of the offense if the offense occurred in a county required to purchase and maintain electronic devices under this section.

Appellant argues that the statute requires not only the purchase of video recording equipment, but the mandatory use of it in all DWI cases. He further argues that, when a county has willfully refused to make such a recording when it otherwise could have, the § 24 sanction, allowing admission into evidence of this failure to record, is insufficient and dismissal is required.

We agree with the appellant that § 24 requires the mandatory use of video recording equipment in all DWI cases in counties covered by the statute. Weaver v. State, 700 S.W.2d 776 (Tex.App.—Fort Worth 1985, pet. ref’d). However, it is clear from the statute itself and the cases construing it that the only sanction available for failure to make a videotape recording is that the fact of the failure itself may be admitted into evidence at trial and dismissal is not required. Maddox v. State, 705 S.W.2d 739 (Tex.App.—Houston [1st Dist.] 1986, pet. granted); Weaver; see also Drewett v. State, 704 S.W.2d 43 (Tex.Crim.App.1986). This construction is consistent with the well-known rule of statutory construction that the express mention or enumeration of one person, thing, consequence, or class is tantamount to an express exclusion of all others. Ex Parte McIver, 586 S.W.2d 851, 856 (Tex.Crim.App.1979). Only one consequence was expressly mentioned by the statute in question for its violation. If that sanction proves ineffective to carry out the intent of the statute, it is the legislature’s prerogative, not the courts’, to add further sanctions.

Appellant, however, contends that the statute must be construed to require a good faith attempt to produce a videotape as a prerequisite to conviction on the grounds that anything less would amount to a suppression of evidence by the State and a violation of appellant’s right to due process. In support thereof, appellant cites numerous out-of-state cases construing similar statutes.

Construing Texas law, however, the court in Weaver held that the “defendant was not denied due process of law for the failure of the State to provide a videotape of him during the arrest procedure.” Id., 700 S.W.2d at 778. We also find the logic of Turpin v. State, 606 S.W.2d 907 (Tex.Crim.App.1980), to be applicable to the present case. Turpin relied upon the standards for disclosure discussed in Stone v. State, 583 S.W.2d 410 (Tex.Crim.App.1979):

“The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” ... In determining materiality, the omission must be “evaluated in the context of the entire record,” and constitutional error is committed only “if [479] the omitted evidence creates a reasonable doubt that did not otherwise exist.”

Id., 583 S.W.2d at 415, in part quoting United States v. Agurs, 427 U.S. 97, 108-10, 112, 96 S.Ct. 2392, 2399-2401, 49 L.Ed.2d 342 (1976).

In Turpin, 606 S.W.2d at 916, the court stated that it was not a denial of due process for the State to destroy ampoules used in a breathalyzer test, even though such ampoules could later have been tested to determine the credibility of the machine’s operation and test results. The court held that because the unavailability of the ampoules merely went to the weight and credibility of the breathalyzer test results, they were not shown to be either material or exculpatory. See also Fitzpatrick v. State, 632 S.W.2d 935, 938 (Tex.App.—Fort Worth 1982, pet. ref'd). In the present case, if the breathalyzer is accurate, where appellant has recorded an alcohol concentration in excess of 0.10 he is defined as legally intoxicated under Tex.Rev.Civ.Stat.Ann. art. 6701l-1(a)(2)(B) (Vernon Supp.1988). In this situation, his only use for a videotape would be to discredit the results of the breathalyzer test as inaccurate. We hold that the appellant failed to show that a videotape would be either material or exculpatory and that he was not denied due process by a failure to make such a recording. Appellant’s first point of error is overruled.

In his second point of error, appellant makes the following vague complaint: “Appellant contends that he was not allowed an opportunity to complete discovery, conclude his preparation of trial, and cross-examine meaningfully the State’s principal witness against Appellant, the breath intoxillator.”

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Green v. State, 745 S.W.2d 477, 1988 Tex. App. LEXIS 205, 1988 WL 7050 (Tex. Ct. App. 1988).

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