*1 where, that must have the effect same as
hеre, only temporary suspension FISCHER, ulti- Appellant, is John Robert (instead mately imposed of an indefinite one). Although interpretation would obviously practical advantages in sit- Texas, Appellee. The STATE of this,
uations such as where it cannot be until known an No. 14-05-00508-CR. investigation completed is suspension whether an indefinite can be Texas, Appeals Court imposed, it plainly is what the statute (14th Dist.). Houston than referring merely states. Rather to “a suspension” or to both kinds of suspension Oct. indefinite), (temporary and as do other provisions, operative express- sentence
ly refers “an suspension.” indefinite is, course, possible analysis
It that an legislative history, objectives of the stat-
ute, construction, rules of and the like
could lead to City’s a conclusion is
interpretation nevertheless what
Legislature “intended.”
City’s provides inadequate brief basis to legislative
establish such intent.
Moreover, is there no indication in the
statute or other suggest rationale to that a
hearing qualifications examiner has the
discretion interpret statutes than written, are plainly such that his
decision can properly be reviewed on that
basis, particularly within limited
scope 143.1016(j). review under section hearing
Because the examiner’s decision interpretation well within a reasonable statute, City’s challenge ap-
peal fails to demonstrate the trial affirming City’s
court erred in it under the interpretation
own of section 143.1016®.
Accordingly, City’s issues are over-
ruled, judgment and the of the trial court
is affirmed.
FOWLER, J., only. concurs in the result *2 Houston, Kugler,
Eric appellee. Panel consists Chief Justice *3 HEDGES and Justices YATES and GUZMAN.
MAJORITY OPINION GUZMAN, EVA M. Justice. presents question This case that has fully never been addressed Texas courts: whether offi- enforcement cer’s observations of a DWI suspect, dic- on videotape, pres- tated are admissible as suspect’s ent sense impressions prosecution.1 criminal Appellant John driving Robert Fischer was arrested for while intoxicated violation of Texas Pe- (Vernon 2003). § nal Code 49.04 Ann. The arresting stop videotaped officer the traffic during which he sobri- administered field ety tests to Fischer and dictated his obser- vations and conclusions. After the trial court denied Fischer’s to suppress motion component videotape, the audio Fischer a plea entered of no contest. On appeal, Fischer contends the trial court reversibly admitting the erred officer’s commentary recorded evidence because the should been excluded under Texas Rule equiv- Evidence as the functional of an report. alent offense hold We law enforcement officer may not the restrictions on the evi- avoid dentiary report by simply use an offense dictating report. of that Be- the substance cause we at issue conclude evidence Akins, Houston, appellant. erroneously Windi for as a present admitted Thus, recurrence, Although presented despite similar issues have been its other evidence. courts, in this and other the merits binding precedent issue. there is no on this addressed, argument fully have never Here, been however, the been issue has isolated either because the issue was waived be- review. error, any, light cause if was harmless in degrees in both tagmus prior forty-five af- impression, and that such error verbally recorded eyes.” also Martinez rights, we re- fected Fischer’s substantial (1) in the opener saw a wine that: he verse and remand. (2) ve- truck; Fischer’s upon approaching strong odor of alcohol hicle he smelled background I. Factual procedural (3) breath; had Fischer Fischer’s 29, 2004, May Highway Patrol Texas On speech. eyes slurred glassy, bloodshot patrol when Martinez was on Trooper Abel Next, Fischer Martinez directed driving Fischer without his observed car. patrol in front Martinez’s stand parked pickup After Fischer seatbelt. *4 test heel-to-toe Martinez administered parking apartment lot his truck of At videotape. was recorded on which A complex, approached Fischer. Martinez test, told of the Martinez conclusion patrol in Martinez’s car mounted here,” Fischer, “stay right and Martinez stop. recorded the verbally then returned to his vehicle. He had “several given that Fischer recorded that informing Fischer he had After early clues,” including starting the test too seatbelt, wearing for not stopped been so, losing instructed to do being without stated he smelled alco- Trooper Martinez instructions, given being his balance while had hol and asked Fischer whethеr he toe, stepping to to touch his heel his failing car; responded alcohol Fischer turn, line, making improper off Fischer he did not. When Martinez asked for balance. using his hands and drinking, replied what he had been Fischer “three wines.” then instructed Martinez Fischer and again Martinez returned to was, standing Fischer to remain where he “one-leg two stand” tests. administered patrol his car. and Martinez returned to completed, the tests were Martinez After verbally Martinez next recorded that to again instructed Fischer remain once “glassy, eyes” Fischer had and bloodshot to he he returned standing where was and speech” “slurred and that he smelled “the vehicle, his Martinez patrol his car. At beverage.” strong odor alcoholic “gave Fischer sev- verbally recorded that clues,” for his arms including using eral Martinez returned to Fischer and direct- balance, putting and swaying, hopping, light him to my ed stand “where is.” This that he foot down twice. Martinez stated was off-camera. Martinez then ad- area gave “a chance to do it Fischer second gaze nystagmus ministered a horizontal clues.” indicated the same [and Fischer] (HGN) range. test out of camera’s “Subject concluded, to going Martinez exam, completing After Martinez re- arrest for DWI.” Martinez placed under peated to Fischer to stand his instruction him then returned to Fischer and arrested light my “where is.” Martinez then re- driving for intoxicated. while patrol to his car and recorded the turned following “Subject equal has statements: filed a Motion May On Fischer size, equal tracking, has a lack of chal- pupil in which he Suppress DWI Video evidentiary has of the pursuit eyes, in both and dis- use lenged proposed smooth claiming videotape,2 nystagmus portion tinct at maximum deviation “a nys- highly prejudi- Subject that the audio contains eyes. both also has onset recording offered portion video dоes not the admission of Fischer contest inflammatory cial and narrative of what is not impres- admissible as sion, second, [Martinez] would the viewer to be- evidence consists observing lieve was what [he] of a law enforcement officer’s and/or observations taking place.” Fischer, According duty matters had a to observe and self-serving “These statements are hear- report, may not be which admitted ” say, bolstering, highly prejudicial.... truth of the matters asserted in a criminal Following hearing, the trial court denied prosecution. grounds
Fischer’s motion on the that Mar- qualified tinez’s narrative III. PRESERVATION OP ERROR impression exception Because the rule.3 State contends Fischer subsequently Fischer entered into a error, preserved plea agreement begin has not pleaded nolo we our conten- analysis by In plea addressing argument. dere. accordance with first agree- ment, the punishment trial court assessed points objection The State out that an confinement, days’ probated for one specify admission evidence must year, and a fine of $300. *5 identify grounds objection, the of the and only part admissible, where of an exhibit is
II.
Issue PResented
appellant
specific
the
must
made a
objection to
of
part
the inadmissible
the
issue,
In his sole
Fischer contends the
exhibit at trial to preserve
complaint
his
trial court
in admitting
erred
the audio
State,
appeal. See Hernandez v.
599
portion of
videotape recording
the
because
614, 617 (Tex.Crim.App.1980) (op.
S.W.2d
and,
it
contrary
is
to the trial
State,
on reh’g); Riley v.
ruling,
qualify
court’s
does not
under the
(Tex.App.-Houston
[14th Dist.]
to
exception
pet.)
no
(holding
appellant’s
that the
“con-
hearsay rule. Specifically,
argues
Fischer
objection
clusory
por-
to the entire audio
audiotaped
that the
is
narrative
the func-
tion
videotape]
[of the offered
was not
equivalent
tional
aof
law enforcement offi-
specific,
is
observations,
inadequate
preserve
and
to
cer’s
of his
and is
appeal”).
error for
Fischer
therefore
concedes that
inadmissible under Texas Rule
803(8)(B).4
questions
some of Martinez’s
interpret
Evidence
and Fischer’s
We
presenting
Fischer’s issue as
two
answers
over-
would be admissible5 and asks
first,
lapping arguments:
that the evidence
this court to order
new
“with
trial
questions
the State.
or
to
These
instructions
Fischer.
questions and
instructions
not statements
offered,
State
The
and the
trial
admit-
prove
offered to
of the matter as-
truth
ted, only
prior
those statements made
serted,
thus,
and
are not inadmissible hear-
time of Fischer's arrest.
801(d)
say.
(defining
See Tex.R. Evid.
statement,
as a
other than one made
4. When offered for the truth
matter
testifying
hearing,
declarant while
at trial or
asserted,
Texas Rule of Evidence
prove
offered in evidence to
the truth of the
generally bars the admission in a criminal
asserted);
matter
S.W.2d
Girard
form,
prosecution
reports,
in
of the
(holding
(Tex.Crim.App.1982)
that a
of matters
and
observations
observed
record-
prove
offered
to
statement
that was
personnel
lawby
ed
enforcement
under a
made, and not for the truth
matter
imposed
duty
by law.
asserted,
hearsay),
is not
overruled on other
significant portion
grounds,
5. A
of the audio
Geesa v.
hearing reports. We don’t let those offense objected that he the narrative clarified preju- because of the —the that’s recording, *6 portions of the audio and any proba- outweighs effect far dicial record demonstrates the trial court under I’m clear if on Judge, tive not value. objections: stood his record, ruling if a your the I have —if [My objection motion, to the offered my Counsel: yet it was in on that and portion of Martinez] the is that argue I it. but didn’t pulls a narrative even before he starts on the It wasn’t probably The Court: out- Mr. Fischer over. He narrates to I did that be— record. understand defendant, presence side that it clear. I did understand wasn’t car, gets in his all these —I makes objection, and that is also your to be mean, grandiose real- statements that overruled. ly being to from appear read some- reviewing videotape After and got that in his We thing he’s car. on to transcript hearing the motion get All to speaker. can’t see the we (a) suppress, ... I we conclude trial is his narration counted hear objected to admis- that Fischer places where he—he understood five different narrative recitation stops sion Martinez’s starts his narrative before 220, suspect, ‘interroga- custody' not of a DWI (Tex.App.-Houston [1st 222 S.W.2d ref'd) holding audible pet. (permitting to tion’ that defendant’s witness Dist.] responses per follow- are not se inadmissible testify complainant ask for he heard counsel; admitting question ing request for and is controlled substance because State, no com- hearsay); 795 in which officer "made also Jones v. not see 171, 172, necessary to than inform (Tex.Crim.App.1990) ments other those S.W.2d (en banc) rights, whether police appellant in- of her determine (holding questioning that rights, her sobriety and instruct videotaped is an she understood her to a test cident " tests.”). concerning sobriety normally and 'activity to arrest attendant (b) observations, pet.) understood certain exceptions (c) grounds objections, for Fischer’s rule have been created for statements on objections. reliability. ruled which other indicia of Accordingly, we See State, preserved hold Fischer Rabbani v. error. S.W.2d (en banc) (Tex.Crim.App.1992) (discussing reliability indicia of underlying IV. STANDARD OF REVIEW impression exception); Sneed v. Generally, a trial court’s on a ruling (Tex.App. 955 S.W.2d to suppress motion is reviewed under an ref'd) (not 1997, pet. -Houston Dist.l [14th abuse discretion v. Dyar standard. exceptions ing rule are based (Tex.Crim.App. S.W.3d evidence). on A trustworthiness of certain 2003). findings When there are no written impression such is one ex record, in the must we view the evidence rule, ception is this light most favorable to the trial exception that the trial court applied ruling uphold ruling any court’s on admitting See the evidence.6 Tex.R. Evid. theory law applicable to the case. State 803(1). Fischer contends Martinez’s Ross, (Tex.Crim. narrative is admissible as a But, if App.2000). the case presents but instead an оffense facts, question of undisputed law based on that cannot be admitted perform we novo de review. Mason prose truth of the matter in his asserted 256 (Tex.App. cution. ref'd) (“The 2003, pet. [14th Dist] Houston following Rule excludes the questions court reviews de novo those general excluding materials from the rule demeanor.”). credibility turning “[Rjecords, statements, hearsay: reports, form, data compilations, public V. Discussion agencies setting offices or forth matters duty pursuant imposed by observed *7 Argument A. of Context Fischer’s duty as to which matters there was a objected Fischer to the admission however, excluding, report, criminal of Martinez’s narrative on the grounds by police cases matters observed officers that his hearsay. comments were The personnel and law enforcement ” added).7 general against face, rule the admission of hear .... (emphasis On its say statements is based on their inherent recоrding Martinez’s consists of matters State, unreliability. v. by See Green 876 observed a enforcement officer as 803(8)(B). 226, 1994, Thus, (Tex.App.-Beaumont 5.W.2d 228 in Rule Fisch described 1997, ref'd) ("[E]valuative arguments hearing pet. reports 6. ... After from Fischer’s are counsel, stated, "Well, the court I think trial against admissible civil cases the okay; clearly present it's and I think it's government of in criminal cases in view the impression in the accordance with rules of almost certain with collision confrontation evidence.” rights which result from their use would case.") against a the accused in criminal Although appear 7. Rule would 803(8), Advisory (quoting Fed.R.Evid. Com- by use bar the of such evidence the defense as Note); Smith, United v. mittee's States 521 by prosecution, well as the courts have con- (D.C.Cir.1975). F.2d 957 permit the strued rule to the use of such State, report by Perry a See v. defendant. 894, (Tex.App.-Texarkana n. 1 S.W.2d responds that Texas courts The State that Martinez’s recorded narra arguеs er of a law the of equivalent yet question tive is the functional have not addressed of observa enforcement officer’s his statements of the observational whether See tions and should have been excluded.8 during personnel made law enforcement (Tex. State, 746, v. Gomez videotape captured on investigation ref'd) App.-Houston pet. [1st Dist.] impression. a constitute re (stating police that a officer’s offense to look to urges us Consequently, State it is ex port “is not admissible because jurisdictions and selected cases from other from pressly excepted the exclusion guidance. courts for from the federal rule Rule hearsay public for records under on v. Blub State first relies State The 803(8)(B).”); Thompson of Evidence (Utah Ct.App.1995). haugh, 904 P.2d 12-03-00014-CR, 2003 WL No. Blubaugh, challenged In appellant Nov.26, (Tex.App.-Tyler at *4 police trial of a officer’s court’s admission ref'd) (mem. designated not pet. оp., home, and ar videotape appellant’s of the publication) (holding that the trial for alia, gued, portion the audio of inter in admitting portion court erred videotape containing a narrative police a containing of officer’s at hearsay. one officers See id. commentary following while defendant upheld the trial appeals 700. The court commentary is because such concluding that ruling, “[b]ecause court’s exception does fall within an for admis trial).9 per while sion the officer’s narrative was made trooper, police Highway officer in criminal Martinez a Texas Patrol observed Highway and the Texas Patrol is a division of [the officer’s] Because remarks case.... ("DPS”). Department Safety of Public exception to and do not fall within an agency DPS "is an the state enforce the rule, admitting the trial erred in protecting public safety provide laws сommentary portion the audio vid on prevention for the and detection of crime.” ...’’). eotape. Texas would not be 411.002(a) (Vernon § Tex. Ann. Gov’t Code a law en the first state to consider whether 2005). recorded observations are forcement officer’s admissible as binding precedent 9. We have found no ad equivalent our must be excluded under the dressing specific argument merits 803(8)(B). In Wilson v. 680 P.2d Rule Fischer raises. See 00332-CR, No. 14-05- Evans (Alaska appellate Ct.App.1984), the (Tex. WL at *1 admissibility of an offi court considered App.-Houston June [14th Dist.] h.) (mem. observations recorded the course of cer’s pet. op., designated publica ("The that, tion) suspicion driving suspect stopping shows several times interview, during Trooper [the Martinez trial court allowed the while intoxicated. The *8 away arresting stepped ap from the jury appellant’s officer] tape played for over to be the pellant and narrated his conclusions about hearsay objection, ruling trooper's that the appellant's performance the intoxication [on hearsay were not be recorded observations However, videotape the was admit tests].... testify a to as witness cause was available jury already ted at trial the had heard after subject to Id. at 1178. cross-examination. testify virtually the Martinez to same matters appeals the trial The court concluded that objection. Be on direct examination without erred, that, explaining although the offi court complained-of the cause the narrative on vid "arguably present were sense cer’s comments eotape merely was therefore cumulative of effect, "were, in impressions,” the statements examination, testimony Martinez’s on direct incident; such, did the his on any require in does error its admission not any exceptions the fit within reversal.”); Thompson, 2003 WL explain its court did not rea rule.” Id. The officerj’s ("[The commentary at on *4 the reaching soning for this conclusion. portion videotape ... are matters ceiving home, defendant’s the er narrative the narrative observations of law en- hearsay” was admissible personnel under Utah Rule forcement under admissible 803(1). Id. Evidence the Blu presented facts similar to those here. Spe- baugh opinion no contains discussion of a cifically, review of Martinez’s comments inadmissible whether the was under on the reveals what can be 803(8)(B).10 analogue the Utah of Rule as a interpreted clinical recitation obser- Moreover, is no there indication that the generally vations that would been have appellant objected to the narrative on the subject report. of written offense The that, grounds although argu the evidence difference here is that Martinez recorded ably qualified impres as a his contemporaneously observations with normally excepted sion and would from investigation, in addition to written rule, it nevertheless was inad may records of observations that he missible because the evidence consisted of have after prepared Fischer’s arrest. per observations of enforcement sum, In the comments narrat- Martinez sonnel offered for truth of the matter presence ed out of Fischer’s show that Thus, asserted. the narrow issue before essentially Martinez dictated the substance us in presented Blubaugh, was but of an report: offense rather, appears been waived. Stop ... [unintelligible] wearing wasn’t Green, State The also relies on his seatbelt. at in (finding 227-28 no error trial police
court’s admission
officer’s testi-
Space
I observed the offense at
Center
mony repeating
impres-
Road
Boulevard
NASA
One.
running
gunfire);
sions of witnesses
from
Subject
eyes,
has glassy, bloodshоt
also
Davis,
Oxygen
Houston
Co.
Tex.
speech,
has
smelled
strong
slurred
(Tex.1942)
5-6, 161 S.W.2d
beverage.
odor of alcoholic
(holding the
failing
trial court erred in
Subject
equal
into
in
has
size.
pupil
admit
evidence
case
civil
present sense
impressions witnesses re-
size,
Subject
equal pupil
equal
has
track-
car);
garding
speed
passing
United
ing,
pursuit
has
lack of smooth
both
(8th
Hawkins,
States
59 F.3d
eyes,
nystagmus
and has distinct
Cir.1995)
(finding
trial court did not
eyes.
maximum deviation
both
admitting tape
err in
of appellant’s wife’s
Subject
pri-
also
of nystagmus
has onset
impression),
911 call as a
forty-five degrees
eyes.
or to
both
grounds,
vacated
516 U.S.
I
nystagmus
See
vertical
...
(1996).
see
L.Ed.2d 206
S.Ct.
But,
opener
wine
inside the truck. When I
these cases contain no indication that
vehicle,
I
approached
the declarant
law enforcement offi-
smelled a
question
cer and do not
strong
beverage coming
raise
wheth-
odor of alcohol
appellаnt’s
objection” gave
proposition,
the same
State
For
also
"blanket
*9
Rideout,
any
us to
States v.
to
refers
United
Fed.
"no reason
doubt that
narration heard
836,
(4th Cir.2003) (unpublished),
by
question
Appx.
jury
fit
the
within this rule.” The
1116,
grounds,
vacated on other
543 U.S.
of whether
Rule of Evidence
Federal
(2004).
803(8)(33)
S.Ct.
857
sensed, quali
or otherwise
thing observed
admitting present
impressions,
for
sense
impression.”).
a
sense
general justification
present
“a
for admission is
as
fies
2
E.
requirement.”
George
same
a
addition
as
courts and commentators
Some
271,
al.,
§
Dix et McCormick on Evidence
not qualify
a narrative does
ally state that
ed.2006).
ed.,
Brandis,
See,
(Henry
at 254
6th
impression.
e.g.,
sense
present
as a
(7th
those
are
considering
requirements,
853,
In
we
Harris,
860
409 F.3d
Cody v.
(“The
mindful that the Texas Rules
Evidence Cir.2005)
for
three criteria
admis
patterned after
Federal Rules of
“are
present
a
sense
sion of
statement as
Evidence,
cases interpreting
and
federal
‘(1)
statement must
impression are:
guidance
rules should
consulted for
as
be
or condition
describe an event
without
Cole,
scope
applicability....”
to their
(2)
narration;
speaker
calculated
(W.D.Va.1996) (noting
present
that
sense
file State relies. See United States v.
Rideout,
(4th
836,
impressions
“highly trustworthy”
Fed.Appx.
be
80
843
Cir.
(not
2003)
publication),
cause
little or
designated
“there is
no time for calcu
for
va-
misstatement....”);
1116,
grounds,
lated
cated on other
543 U.S.
Green
St.
125
Inc.,
1109,
731,
(2005);
Francis
S.Ct.
300
772
(excluding
S.E.2d
by
Blubaugh,
ed
Rideout and
previ
cited
note
a present
impres
offered as
sense
ously.
Inasmuch as
has
Rideout
been va
sion
it “was
to a nar
because
more akin
cated, we do
persuasive
not find it more
rative
than
contemporane
statement
[a]
many
holding
than the
federal cases
nar
....”);
ous declaration
see also Houston
ratives inadmissible as
sense im
Co.,
Oxygen
6,
Tex. at
139
161 S.W.2d at
pressions.
Blubaugh unper
We also find
476
(admitting
sense
In
appellant
Blubaugh,
suasive.
made when
was no time for a
“[t]here
child,
of a
convicted
the murder
statement.”)
added);
(emphasis
calculated
among
appeal,
other issues raised on
Guevаra,
111,
United States
277 F.3d
challenged
the trial
admission
court’s
(2d Cir.2001)
(affirming trial court’s
messy
of his
home. Blu-
by
exclusion of
po
conversations recorded
baugh,
appellate
P.2d at 699. The
stating
lice officer and
the trial
court held that
was irrelevant:
court’s “determination that
declar-
[the
unnecessary
aside from
an
presenting
did not
‘pres
ant’s] statements
constitute
crime,
provid
view of
location of the
ent
impressions’
or ‘excited utter
charged.
ed no evidence of the crime
Id.
ances’ because
were conclusions
at 700.
the court found the trial
upon
based
information [the declarant]
error in
admitting
court’s
video harm
processed
had
contemporane
rather than
less because the case turned on other evi
spontaneous
ous or
statements that were
dence.
Id. The trial court also overruled
inherently trustworthy, was neither arbi
objection to a
appellant’s
pоlice
offi
irrational.”).
trary nor
por
cer’s narrative
in the audio
contained
expressly
Not all
narra-
Citing
courts
exclude
tape.
tion of
same
Utah Rule
803(1),
impressions,
appellate
tives from
as is
of Evidence
stated,
which
illustrated
two
the cases on
“Because the officer’s narrative
declarant,
faith,
good
We
note
further
that some state rules of
ceived
made
evidence
from the
Texas
differ
federal and
contemplation
pending
anticipat-
not in
or
excep-
perception”
rules and follow "recent
litigation in which
ed
the declarant was inter-
"present
tion to the
rule rather than a
ested, and while the declarant’s recollection
impression" exception.
A statement of
Haiti,
was clear....” State v.
Hawai’i
"statement,
perception
recent
is defined as a
(2003);
see
79 P.3d
also State v.
instigation
person
response
not in
aof
Manuel,
281 Wis.2d
697 N.W.2d
engаged
investigating, litigating,
settling
(2005);
Ross, 122
State v.
N.M.
narrates, describes,
claim,
which
or ex-
(1996).
P.2d
plains
recently per-
an event or condition
witness,
officer,
lay
as a
perceiving
a law enforcement
was made while
defendant’s
evi
home,
expert
cataloging
witness
hear-
and as
the narrative was admissible
added).
in Fischer’s
opinions
use
no dence
say.”
(emphasis
Id.
Because
Emerson v.
prosecution. See
given,
description
the narrative is
*13
(en
(Tex.Crim.App.1994)
the S.W.2d
the narrative consists of
presume
we
banc)
may testify
a
(stating that witness
Thus,
the
perceptions
officer’s
of
home.
performance
regarding a defendant’s
of
the
the
portions
video and
if
gaze nystagmus test
the horizontal
evi-
present
would both seem
irrelevant
expert
in
as an
qualified
witness
concerning appellant’s
dence
residence.
test);
of the
technique
and
administration
admis-
Considering that
the trial court’s
(Tex.
213, 192 S.W.3d
of
to be harmless
sion
the video was held
Plouff v.
h.)
pet.
no
App.-Houston [14th Dist.]
content,
its
we
not find
error based on
do
testimony based
(stating that an officer’s
in
a nar-
opinion
holding
well-reasoned
one-leg
stand and
on observations
Ac-
rative of similar content admissible.
lay
“is considered
wit
walk-and-turn test
as
cordingly, we
that narratives
conclude
testimony under Tex.R. Evid.
opinion
ness
and
opinions
well as
calculated statements
_”)
added). As
(emphasis
previ
im-
are
admissible as
noted,
ously
opinion,
statements of
wheth
pressions.
lay
expert,
or
are not
er of
witness
an
Anderson,
impressions.
See
Application
D.
to the Martinez Audio
at
183-84.
Recording
re
After
careful review of the
Moreover, we
with Fisch
agree
issue,
cording
at
we hold
Martinez’s
that,
pre
the facts
er’s contention
under
commentary
qualify
recorded
does not
as
case,
in
narrative is
sented
Martinez’s
Instead,
impression.
police report
equivalent
the functional
are a calculated
state
comments
narrative
for the truth of
or offense
offered
merely
ment in which Martinez does not
First,
matter
the observa
asserted.14
events,
explain
participates
or describe
but
recording
made in an
tions
were
in and even creates some of the
he
events
begins by
setting. Martinez
adversarial
reports in the
collecting
course of
evi
driving
Fischer
stating that he observed
example,
dence.
For
most Martinez’s
seatbelt,
video
and the
shows
without
simply
re
observations
describe Fischer’s
Fischer
to the
that Martinez followed
sponses
sobriety
tests that Martinez
apartment complex
of his
parking lot
selected and administered and about which
Martinez then
stopped
he
Fischer.
where
expert
at
designated
he was
as an
witness
investigated
alcohol and
stated
smelled
trial.
to con
If Martinez had not chosen
had
the of
whether Fischer
committed
tests,
duct
This
driving
these
there would have been
while intoxicated.
fense
him to
response
investigation
observe.
It therefore
in Fischer’s ar
culminated
Thus,
com
comments cannot
appears that Martinez recorded his
rest.
Martinez’s
objective observer,
than the
anything
ments
an
as
construed as
not as
but
be
mission,
803(8)(B)
by
require
matters
enforce-
Rule
does
14. Because
observed
personnel
exception
gener-
in
ment
are
courts to consider
form
which
statements,
“[rjecords,
determining
reports,
al ride
observation is
recorded
any form,
must
excluded.
compilations,
public
data
of-
whether
is admissible or
803(8)
added).
(emphasis
agencies” may
ad-
TexR. Evid.
fices or
be considered for
See
personnel
observations
law enforcement
sented
precisely
type
here with
of evi-
“at the scene of
crime or
apprehen-
dence singled
out as unreliable
Rule
803(8)(B).
sion of
(a)
the defendant” that
specifically
The narrative was made
803(8)(B).
targeted by
(b)
Rule
See S.Rep.
the scene
stop,
of the traffic
(1974),
No.
reprinted
(c)
in 1974 investigating
arresting trooper,
7054; Cole,
(d)
U.S.C.C.A.N.
839 S.W.2d the
investigating
course of
and arrest-
at 811-12 (quoting legislative history of
ing
person
whom
about
the observa-
stating
(e)
that the
made,
Fed.R.Evid.
tions were
the statements at
Rule
does not “exclude
‘offense re-
presence
issue were made outside of the
ports’ pertaining to observations at the
person
observed. Under these circum-
*14
”);
scene of the
or arrest
....
crime
see
stances, admitting
report simply
be-
State,
113,
also Baker v.
177 S.W.3d
122-
cause it
contemporaneously
was dictated
2005,
23 (Tex.App.-Houston [1st Dist.]
no with or
after
immediately
making the ob-
(“[H]ad
pet.)
attempted
the State
to offer
servations it contains would be “inconsis-
Officer
report
Green’s actual
into evidence
tent with the
effect” of
intended
Rule
prove
to
that the observations
in
contained
803(8)(B).
Cole,
See
grounds that
Harm
likely
“the factors
to cloud
perception
official engaged
of an
in the
The erroneous admission of
more traditional law enforcement functions
hearsay is nonconstitutional error. See
investigation
of observatiоn and
of crime
Johnson v.
S.W.2d
417
967
simply
are
present.”);
not
State v. Leon-
(Tex.
N
App.1998).
Crim.
onconstitutional
ard,
54,
tions). agree I that the rendering factors 803(8)(B)
hearsay unreliable under Rule
are relevant in assessing whether Mar-
tinez’s statements constitute a impression. majority
implies that Rule excludes the
admission of all reports, law enforcement
regardless of whether fall within
some other recognized hearsay exception.
It is with this conclusion that I disagree. HORTON, INC.,
D.R. Appellant, *16 BROOKS, Appellee.
Aurora Horton,
In re D.R. Relator. 14-06-00099-CV,
Nos. 14-06-00152-CV. Texas, Appeals
Court of (14th Dist.).
Houston
Nov.