422 S.W.3d 886
Tex. App.2014Background
- Tollette was convicted of misdemeanor driving while intoxicated in Harris County, Texas, with a 180-day jail term and $4,000 fine on appeal from County Criminal Court at Law No. 12.
- Nassau Bay Officer Hernandez, off-duty, observed Tollette driving erratically and reported concerns of intoxication to Officer Sharp.
- Officer Sharp stopped Tollette, who drove to his home and exited the vehicle; Tollette refused field sobriety tests, showed slurred speech, odor of alcohol, and other indicia of intoxication.
- Video from Officer Sharp’s patrol car captured Tollette’s conduct and statements, supporting intoxication.
- EMT treated Tollette’s staph wound; Glasgow coma score was high; Tollette denied drinking; defense challenged certain evidentiary rulings, including Rule 608, Rule 38.23(a), and an EMT report; the court ultimately affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 608(b) cross-examination height:** specific act admissibility | Tollette sought to impeach Hernandez with a 2006 termination for withholding gun-discharge information. | Hernandez's termination was not probative of the current DUI credibility and posed risk of improper character assassination. | No abuse of discretion; cross-exam not required under Confrontation Clause; evidence not related to current credibility and proper limits applied. |
| Rule 608(a) reputation for truthfulness | Morales’s opinion on Hernandez’s truthfulness should have been admitted. | Exclusion harmless; Hernandez’s video and testimony outweighed potential impeachment impact. | Harmless error; video evidence overwhelmingly supported intoxication; no reversal. |
| EMT medical report exclusion | Excluded EMT report contained relevant treatment details. | Same substance later admitted through testimony; exclusion harmless. | Harmless error; reliance on testimony and later-admitted content preserved verdict. |
| Voice exemplar admissibility | Tollette sought to offer a voice exemplar to show typical slurring. | Exemplar was improperly admitted and could be manipulated; state objected. | Waived; alternatively harmless given video; no reversal. |
| Article 38.23(a) jury instruction | Disparity between officers’ observations raised factual disputes about legality of stop. | No affirmative evidence that Hernandez lied about driving; Sharp did not observe infractions. | No error in denying 38.23(a) instruction; testimony did not create a contested material fact about legality of stop. |
Key Cases Cited
- Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001) (standard for reviewing evidentiary rulings under abuse of discretion)
- Winegarner v. State, 235 S.W.3d 787 (Tex. Crim. App. 2007) (harm standard for nonconstitutional evidentiary error under Rule 44.2(b))
- Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002) (zone-of-reasonable-disagreement standard for evidentiary rulings)