Orrick v. State

36 S.W.3d 622, 2000 Tex. App. LEXIS 8380, 2000 WL 1843203
CourtCourt of Appeals of Texas
DecidedDecember 15, 2000
DocketNo. 2-98-593-CR
StatusPublished
Cited by6 cases

This text of 36 S.W.3d 622 (Orrick v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Orrick v. State, 36 S.W.3d 622, 2000 Tex. App. LEXIS 8380, 2000 WL 1843203 (Tex. Ct. App. 2000).

Opinion

OPINION

GARDNER, Justice.

I. INTRODUCTION

Appellant Terry Eugene Orrick appeals from his conviction for driving while intoxicated. In one point on appeal, Appellant contends that the admission of an unopened bottle of vodka as demonstrative evidence at Appellant’s trial constituted reversible error under rules 401, 402, and 403 of the Texas Rules of Evidence. We affirm.

II. Factual BACKGROUND

At around 11:00 p.m. on December 17, 1996, Officers B.E. Ladd and J.R. Thompson of the Fort Worth Police Department clocked Appellant’s car traveling at 54 m.p.h. in a 35 m.p.h. zone. After they followed Appellant’s car and saw it weaving from the lane closest to the curb into the center lane and crossing the white dividing line two or three times, the officers pulled Appellant over.

According to Officer Thompson’s testimony, he asked Appellant for his driver’s license and proof of insurance, which Appellant produced after “fumbling” through his wallet. Thompson related that he smelled alcohol on Appellant’s breath and inside the car. Thompson also testified that Appellant slurred his speech and that his eyes were bloodshot and watery.

When Officer Thompson returned to his patrol car to run a license check, Appellant got out of his car and began walking towards the patrol car. Thompson saw that Appellant “swayed and staggered” as he walked. Thompson met Appellant at the rear of Appellant’s car. At that point, Appellant told Thompson that he had been up since 2:00 a.m. the previous morning and that he had been taking Prozac. According to Thompson, when asked whether he had been drinking, Appellant stated that he had consumed “a little bit to drink, but not too much.” Thompson testified that he believed that Appellant had drunk an excessive amount of alcohol. He then called the DWI unit to the scene.

Officer Otto Janke of the DWI unit testified that he administered the horizontal gaze nystagmus test (HGN), the walk-and-turn test, and the one-leg stand test. Janke testified that Appellant exhibited all six clues of intoxication on the HGN test. Furthermore, Janke testified that, on the walk-and-turn test, Appellant did not wait for Janke to finish his instructions. Appellant performed poorly on the heel-to-toe task and had to use his arms for balance instead of keeping them at his side as instructed. Finally, Janke testified that, on the one-leg stand test, Appellant put his foot down after five or six seconds rather than waiting the requisite thirty seconds, and he continued to put his foot down three more times during the test. Janke also opined that Appellant had lost the normal use of his mental and physical faculties because of alcohol. Appellant was subsequently arrested for DWI.

After Appellant was placed under arrest, Officer Thompson inventoried Appellant’s car. Thompson testified that he found a bottle of Taaka vodka that was approximately ½ full in the car’s center console, which was within Appellant’s reach. Thompson stated that the bottle was not tagged as evidence and remained in Appellant’s car when it was impounded. He did [625]*625not test the bottle’s contents to determine whether it was vodka or water. At trial, State’s Exhibit 4, a Ml, sealed bottle of Taaka vodka, was offered and admitted as demonstrative evidence.

Appellant and his wife testified at trial. Appellant’s wife testified that she had seen Appellant at approximately 7:00 p.m. on the evening of the arrest and that he had not been drinking. She further stated that, during the ten years she had known Appellant, he had never taken more than one drink on any one occasion. She also testified that Appellant suffered from degenerative discs in his cervical vertebra and that he had undergone surgery for these problems, ultimately resulting in titanium rods being placed on both sides of the vertebra in his neck.

Appellant testified that when he was stopped, he was on his way home from looking at new cars at several dealerships. Appellant related that, when he was pulled over, Officer Thompson initially issued a citation to Appellant. However, when Appellant wrote on the citation that he requested a hearing, Thompson became angry, ordered Appellant out of the car, and administered field sobriety tests. Appellant testified that the bottle found in his car contained water, not vodka. Appellant further explained that he rarely drank alcohol and that the last time he remembered drinking was in the summer of 1995.

The jury found Appellant guilty and sentenced Appellant to 45 days’ confinement and a $225 fine, probated for 24 months.

III. Demonstrative Evidence

In his sole point on appeal, Appellant contends that the admission of State’s Exhibit 4 for demonstrative purposes constituted reversible error under rules 401, 402, and 403 of the Texas Rules of Evidence. Specifically, Appellant argues that the demonstrative purpose for which the unopened bottle of vodka was admitted was not relevant to the charged offense under rules 401 and 402. Appellant further argues that, even if the unopened vodka bottle is held to be relevant to the charged offense, it should have been excluded under rule 403 because its probative value was substantially outweighed by the danger of unfair prejudice to Appellant.

A trial court’s admission of demonstrative evidence is reviewed under an abuse-of-discretion standard. Kelly v. State, 824 S.W.2d 568, 574 (Tex.Crim.App. 1992); Montgomery v. State, 810 S.W.2d 372, 390-93 (Tex.Crim.App.1990) (op. on reh’g). The trial court does not abuse its discretion if its ruling lies within the “zone of reasonable disagreement.” Montgomery, 810 S.W.2d at 391.

Rule 402 of the Texas Rules of Evidence sets out the general rule of admissibility of evidence:

All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible.

Tex.R.Evid. 402.

Under rule 401 of the Texas Rules of Evidence:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Id. 401.

To be admissible as demonstrative evidence, the object or thing must in some manner be relevant to the issues involved in the case and have evidentiary value; that is, it must shed light on the subject at hand. Simmons v. State, 622 S.W.2d 111, 113 (Tex.Crim.App.1981); Sor-ensen v. State, 856 S.W.2d 792, 794 (Tex. App. — Beaumont 1993, no pet.); Vollbaum v. State, 833 S.W.2d 652, 657 (TexApp.— Waco 1992, pet. ref d); Reyna v. State, 797 S.W.2d 189, 193 (TexApp. — Corpus Christi 1990, no pet.); Tezino v.. State, 765 S.W.2d 482, 486 (TexApp.

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Bluebook (online)
36 S.W.3d 622, 2000 Tex. App. LEXIS 8380, 2000 WL 1843203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orrick-v-state-texapp-2000.