Afrim Hysenaj v. State
11-13-00219-CR
| Tex. App. | Aug 6, 2015Background
- Afrim Hysenaj was stopped for speeding, showed signs of intoxication, failed field sobriety tests, and was arrested for DWI.
- Hysenaj submitted to an intoxilyzer breath test administered by Officer Brent Stafford; the printout showed a BAC of .115.
- At trial, Katie Scott (the then-current technical supervisor) testified the intoxilyzer was working; the actual technical supervisor at the time of the test, Lisa Fondren, did not testify.
- Hysenaj objected under the Sixth Amendment Confrontation Clause to admission of the intoxilyzer results and objected under Texas Rule of Evidence 403 to a demonstrative HGN video showing unknown eyes with and without nystagmus.
- The trial court admitted the intoxilyzer printout and the demonstrative HGN video (with a jury-limiting instruction); Hysenaj was convicted and appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admitting intoxilyzer printout via a supervisor who was not the supervisor at time of test violated the Confrontation Clause | Hysenaj: admission is testimonial without live testimony from the supervisor in charge at time of test; violates Crawford/Melendez-Diaz/Bullcoming | State: current technical supervisor and the operator testified; printout contained no separate analyst notations; Settlemire controls | Court: No Confrontation Clause violation; admission proper under Settlemire and related authority |
| Whether demonstrative HGN video of unknown eyes was inadmissible under Tex. R. Evid. 403 | Hysenaj: video is more prejudicial than probative and should be excluded | State: video is demonstrative, aids jury understanding; officer clarified video was not of defendant and judge gave limiting instruction | Court: No abuse of discretion admitting video; Rule 403 balancing favors admissibility |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (confrontation rule for testimonial out-of-court statements)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (certificates of forensic analysis are testimonial but not all ancillary personnel must testify)
- Bullcoming v. New Mexico, 564 U.S. 647 (report admission via surrogate analyst who did not perform test can violate Confrontation Clause)
- Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013) (analogous holding applying Bullcoming in Texas)
- Settlemire v. State, 323 S.W.3d 520 (Tex. App.—Fort Worth 2010) (upholding admission of breath test results when current supervisor testifies)
- Hartsock v. State, 322 S.W.3d 775 (Tex. App.—Fort Worth 2010) (permitting demonstrative HGN video with limiting instruction)
- Mechler v. State, 153 S.W.3d 435 (Tex. Crim. App. 2005) (factors for Rule 403 balancing)
- Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (abuse-of-discretion standard for evidentiary rulings)