Vasquez Garza v. State

794 S.W.2d 530, 1990 Tex. App. LEXIS 1593, 1990 WL 88681
CourtCourt of Appeals of Texas
DecidedJune 29, 1990
DocketNo. 13-89-422-CR
StatusPublished
Cited by3 cases

This text of 794 S.W.2d 530 (Vasquez Garza 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
Vasquez Garza v. State, 794 S.W.2d 530, 1990 Tex. App. LEXIS 1593, 1990 WL 88681 (Tex. Ct. App. 1990).

Opinion

OPINION

BENAVIDES, Justice.

Appellant Gilbert Vasquez Garza was charged with driving while intoxicated (DWI) and terroristic threats. A jury acquitted him of the terroristic threats charge and found him guilty of driving while intoxicated. His punishment was assessed at one year in the county jail, probated for two years, and a fine of $500. By six points of error, appellant appeals from his conviction on the DWI charge complaining of the admission of a tape recording and the exclusion of other evidence at his trial. We affirm the judgment of the trial court.

The record reveals that in the early morning hours of November 23, 1986, Officer Meza of the Nueces County Sheriffs Department observed appellant’s car weaving down a public road in Robstown. After appellant unsuccessfully negotiated a u-turn, drove over a curb while turning a corner, nearly hit several parked cars, and continued to weave down the road, Officer Meza turned on his overhead flashing [532]*532lights and commenced pursuit. He followed appellant for ten blocks, during which time appellant continued to weave, sped up, and fishtailed while turning a corner, again nearly hitting several parked cars. Appellant finally responded to Officer Meza’s signals and pulled over in the parking lot of a restaurant.

After appellant got out of his car at Officer Meza’s request, Officer Meza observed that appellant’s eyes were watery and glossy, that his speech was slurred, that he had the odor of alcohol on his breath, and that he was swaying when he stood and staggering when he walked. Officer Meza determined that appellant, who he recognized as a Robstown police detective, was intoxicated and placed him under arrest and read him his rights.

Appellant became belligerent and disrespectful and Officer Meza radioed for backup from the Sheriff’s Department and contacted the Robstown police on appellant’s walkie-talkie. Within minutes two other officers from the sheriff’s department were on the scene, as well as two Robstown Police officers, three deputy constables and an officer with the Texas Alcoholic Beverages Commission. The other two sheriff’s department officers, Plummer and Soliz, and one of the Robstown police officers, Gomez, were the only officers at the scene other than Meza who got close enough to appellant to actually observe his physical condition. All three of them observed that appellant had the smell of intoxicating beverages on his breath, and that his eyes were either small looking or bloodshot as if he had been drinking, and all three were of the opinion that appellant was intoxicated.

Upon Meza’s request, Officers Plummer and Soliz helped Officer Meza handcuff appellant, who was struggling and resisting arrest, and place him in the back seat of Officer Meza’s patrol car. At that time, Officer Meza re-read appellant’s rights to him and again told him that he was under arrest for DWI. Appellant then began cursing and screaming at Officer Meza in Spanish and, according to Officer Meza, threatening him. Officer Plummer, who along with Officer Soliz was listening to appellant, offered his portable tape recorder to Officer Meza. Officer Meza used the recorder to tape appellant during the trip from Robstown to the Nueces County Jail in Corpus Christi. During the entire trip, appellant repeatedly cursed and verbally abused Officer Meza. Only occasionally did Officer Meza respond to appellant, and at those times it was with comments such as “what’s wrong with you” and “I don’t have to fight you.”

Officer Meza turned off the tape recorder when he reached the Nueces County Jail and he and several other officers removed a reluctant appellant from the back seat of the patrol car. While at the jail, appellant refused to take the breath intoxilizer test or allow himself to be videotaped.

By appellant’s first three points of error, he complains that the trial court erred in admitting a copy of the tape recording of appellant made during custody, contending that the tape did not contain a warning to appellant that he was being recorded and that all the voices on the tape were not identified. He also complains that the original tape was never accounted for and that the admitted tape was not an accurate reproduction of the original tape. Appellant objected at trial on these same grounds. The judge overruled appellant’s objection and admitted the tape.

The predicate for admission of tape recordings into evidence was set forth in Edwards v. State, 551 S.W.2d 731, 733 (Tex.Crim.App.1977):

(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.

These requirements do not need direct proof if they can be inferred from the testimony. See Edwards, 551 S.W.2d at 733.

[533]*533The cassette tape which was first admitted into evidence was a copy of the original tape. Appellant complains that this tape should not have been admitted because it had been altered and was not an accurate reproduction. The Edwards requirements do not mean that any alteration in a tape renders the tape per se inadmissible. Quinones v. State, 592 S.W.2d 933, 944 (Tex.Crim.App.1980) cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 reh. denied, 449 U.S. 1027, 101 S.Ct. 600, 66 L.Ed.2d 490 (1980). If the alteration is accidental and is sufficiently explained so that its presence does not affect the reliability and trustworthiness of the evidence, the recording can still be admitted. Quinones, 592 S.W.2d at 944. The copy which was admitted did contain everything that was on the original until it (the copy) ended; more was contained on the original than on the copy. The transactions at the jail were not contained in the copy, and the absence of that portion was explained by the shortness of the tape on which the copy was made. Further, we note that the original tape was admitted into evidence.

Officer Meza identified his own voice and appellant’s voice on the tape. He also identified voices in the background on the tape as the voices of the other law enforcement officers who were on the scene. Officer Meza was unable to positively identify all of the background voices, but could say that they were other law enforcement officers. In view of the fact that testimony established that the only other people present during the time the recording was made were either the law enforcement officers at the scene of the arrest or the law enforcement officers at the jail, we find that Officer Meza adequately identified the voices on the tape. See generally, Elliot v. State, 681 S.W.2d 98, 103 (Tex.App.—Houston [14th Dist.] 1984), aff'd, 687 S.W.2d 359 (Tex.Crim.App.1985).

Appellant complains that the tape does not contain a warning that he was being recorded.

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Bluebook (online)
794 S.W.2d 530, 1990 Tex. App. LEXIS 1593, 1990 WL 88681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vasquez-garza-v-state-texapp-1990.