John Joseph Foster v. State
03-14-00252-CR
| Tex. App. | May 11, 2015Background
- On June 29, 2013, off-duty Deputy Grayson Kennedy observed John Joseph Foster driving erratically and at high speeds (75–100+ mph), running red lights and failing to maintain lanes; Kennedy called 911 and the sheriff's office.
- Trooper Joseph Stuart (DPS) stopped Foster; Stuart smelled alcohol, Foster admitted drinking (beer and a vodka drink), and Stuart administered standardized field sobriety tests (HGN, Walk-and-Turn, One-Leg Stand) that produced the minimum number of "clues" on each test.
- Foster was arrested and, after a continuous 15-minute observation period at the jail, provided two breath samples on an Intoxilyzer showing BACs of 0.092 and 0.090.
- Defense challenged: officer credibility and conduct of sobriety tests; reliability/calibration and observation procedure for the Intoxilyzer; and admitted 911/phone-call recordings and bad-driving evidence as improper bolstering/extraneous offenses needing a limiting instruction.
- The State argued (and the trial court admitted) the 911 calls as substantive same-transaction/contextual evidence of bad driving and intoxication; the Intoxilyzer and technician testimony supported breath results; jury convicted (appeal raises five points of error).
Issues
| Issue | State's Argument | Foster's Argument | Held |
|---|---|---|---|
| 1. Whether prosecution commented on defendant's post-arrest silence | No preserved error; no objection at trial; any comment harmless beyond a reasonable doubt | Comment impermissibly invoked defendant's silence (Doyle/Texas Constitution protections) | Error not preserved; even if error, harmless under Rule 44.2(a) — overruled |
| 2. Sufficiency of evidence for DWI (intoxication) | Combined evidence (driving, odor, SFSTs, breath results) supports conviction beyond reasonable doubt | Officer unreliable; SFSTs and breath results unreliable per defense experts | Evidence legally sufficient (including BAC > .08); point overruled |
| 3. Admission of Deputy Kennedy's phone-call/911 recordings (Rule 403) | Recordings relevant and probative as same-transaction/contextual evidence; probative value not substantially outweighed by unfair prejudice | Recordings unfairly prejudicial and cumulative; should be excluded under Rule 403 | Trial court within discretion; admission not abuse of discretion — overruled |
| 4. Admission of recordings as improper bolstering of witness | Recordings were substantive evidence of driving/ intoxication, not sole-purpose credibility bolstering | Recordings merely corroborated Kennedy and bolstered his credibility impermissibly | Not bolstering; admissible as corroborative substantive evidence — overruled |
| 5. Introduction of "bad driving" as extraneous-offense evidence without limiting instruction | Bad driving was same-transaction contextual evidence intrinsic to the charged offense; Rule 404(b) and limiting instruction not implicated | Evidence amounted to extraneous bad acts and required limiting instruction; omission caused egregious harm | Evidence admissible as same-transaction contextual evidence; no limiting instruction required — overruled |
Key Cases Cited
- Doyle v. Ohio, 426 U.S. 610 (1976) (prohibits comment on post-Miranda silence under federal law)
- Sanchez v. State, 707 S.W.2d 575 (Tex. Crim. App. 1986) (Texas prohibits use of post-arrest silence under state constitution/art. 38.08)
- Jackson v. Virginia, 443 U.S. 307 (1979) (legal-sufficiency standard — any rational trier of fact)
- Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless-error standard for federal constitutional error)
- Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (abuse-of-discretion review for evidentiary rulings and Rule 403 balancing)
- Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (distinguishing substantive corroborating evidence from impermissible bolstering)
- Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007) (same-transaction contextual evidence not subject to Rule 404(b) limiting instruction)