Sims v. State
735 S.W.2d 913
Tex. App.
1987
Check Treatment

*2 WHITHAM, Before BAKER and 0.10 or more. LAGARDE, JJ. 6701Z-l(a)(2)(A) Tex.Rev.Civ.Stat.Ann. art. (B) (Vernon Supp.1987). Thus, & although LAGARDE, Justice. provides ways by statute two which the Patrick appeals Michael Sims from his proven, only offense pro- can be one act is driving conviction for while intoxicated. scribed: while intoxicated. See Punishment thirty days assessed Russell v. County jail confinement the Dallas and a ref'd). (Tex.App. pet. Where —Austin fine. $400 We affirm. ways by a statute sets forth several committed, they may offense be error, his first charged conjunctively in one count in the tends that the trial court erred in overrul- Sidney indictment or information. exception to the information and in refusing to jury special submit to the ver- 1978); Garcia v. dict forms. charged The information (Tex.Crim.App.1976); State, 687 Salazar v. appellant: did then and there drive and —Dallas ref’d). Thus, pet. the trial court did not err public place motor vehicle in a in Dallas refusing quash the information. County, high- to-wit: a street and intoxicated, way, while in that the de- Nor was entitled to submission fendant special did not have the normal use of of re- verdict forms. Texas law quires mental and faculties rea- that the verdict in criminal actions alcohol, general, son of the introduction of into be see Tex.Code Crim.Proc.Ann. 37.07, 1(a) (Vernon 1981),and, videotape, art. deletions had been made in the cases, capital all than murder court has voices were identi- that, special fied, authority to submit refused to issues when waive rights, criminal case. See Stewart v. his Miranda1 was asked fur- offense, 124 (Tex.Crim.App.1984). ther about the where, here, charging completed, instru- “Offi- alleges conjunctively ways Hargis tape ment different cer removed the from the ma- *3 committing gave put is and it to and I it in an offense and the chine me this disjunctively, general charged put a ... and then it’s into a locked box verdict box finding charged in in guilty a defendant as there Lew Sterrett.” proper support the is will a indictment and Appellant adequacy of the attacks the theory sup- either is convictionunder First, grounds. predicate laid on two ported by Vasquez the evidence. See the failed show contends that state to that 484, (Tex.Crim. State, 665 S.W.2d 486-87 Hargis, Baker the whom testified was vid- App.1984); State, Reardon v. 695 S.W.2d eotape operator, competent was machine to 331, 333-34 [1st Dist.] —Houston agree operate the machine. that the We 1985, pet.). Accordingly, we overrule produce to direct state failed evidence that appellant's first of error. Hargis competent operate was to the video- tape Hargis machine. testified was error, ap his second intoxilyzer qualified operator, a he did pellant contends that the trial court erred testify concerning ability operate not to admitting videotape into evidence a made videotape machine. Baker testified after his arrest the state to failed Hargis competent “a operator” that was lay A proper predicate a for admission. machine; however, appellant’s objec- proper predicate for of a testimony tion to this was sustained and requires: (1) showing recording sound a present state failed evidence recording that the capable device was satisfy prong this of Edwards. Neverthe- (2) taking showing testimony, a that less, pointed videotapes Roy, out in (3) competent, of the device was greater reliability vey a indicia of than authenticity establishment of the cor and standing tapes film alone either or sound recording, (4) showing rectness of the a require- predicate at and least some additions, changes, that or deletions have testimony. ments be inferred from the made, (5) not showing a of the been manner Edwards, 608 551 Roy, S.W.2d 645. See (6) preservation recording, (“at [predi- at 733 least some of speakers, (7) identification a and requirements inferred from can be cate] showing testimony elicited was example, testimony if a ... [f]or voluntarily any in made without kind of hear a position a conversation who ducement. Edwards v. recording tape testifies that he made a (Tex.Crim.App.1977);McEntyre it to coincide that conversation and found — (Tex.App parties say, then it with what he heard the pet.). The Houston [1st Dist.] ‘operator goes saying that the without ... requirements applied same ”). competent’ of the device was videotapes. Roy v. testimony outlined above present (Tex.Crim.App.1980). Before the vid the tri- sufficient evidence from which was Baker, eotape played, was was Officer who Hargis compe- infer was al court could videotaping but was videotape machine. tent machine, operator of the testified proper lay did fail to state recording “basically machine was predicate for admission VCR”, making capable that it was regard. into evidence this recording, truly accurate that be accurately represented also contends session, alterations, videotape machine changes, Baker was not the that no cause (1966). L.Ed.2d 694 384 U.S.

operator, testimony inadequate given warnings. Appellant the Miranda satisfy remaining requirements for a acknowledged understood his proper predicate admission of the video- rights. The officer then asked tape. disagree. pictures Motion lant for his respond- address photographs provided are admissible there by asking ed need my attorney “Do I proof accuracy rep- of their as a correct responded “No, that?” officer The subject given resentation time questions” just these are pro- basic provided they have material relevance height, weight, ceeded to ask disputed issue. Darden v. 629 place birth, nicknames, security social (Tex.Crim.App.1982). number, employer, employer’s address, and The verifies such witness who exhibits sick, injured, diabet- photographer, need not be the nor need epileptic, ic or or whether had any knowledge concerning way have teeth, eye, glass limbs, false artificial Darden, photograph which the was made. impairments. or other physical *4 629 S.W.2d at 49. Because it is the accura- officer also asked when he last cy an relevancy of exhibit which is at ate, ate, date, day, what the and time. determining issue in its admissibility, we questions, After answered these why holding see no reason the Darden the officer asked would applied videotapes should not as well. rights questions waive his and answer con- though we hold even cerning Appellant responded the offense. videotape oper- Baker machine was not the questions and no ator, would not qualified pred- the establish cerning videotape the offense were asked. icate for requirement videotape there is no that the argument under this of er- machine himself establish the ror, appellant “personal contends predicate admissibility. We overrule data” “are as indicative be- [of] appellant’s point of second error. ing under the influence as di- [of alcohol] error, appellant In his third only they rect are ... de- contends that the trial court erred in “fail signed to defensive evidence eliminate ... right appellant’s enforce Miranda [they permit] also viewer decide taped terminate the inter video/audio question of intoxication on 2 argues expressed view.” He that once he is, hesitation, speaking, manner of speak attorney during his desire to with an tongue speech sway- thick and slurred ... arrest, videotaping after his session ing, walking standing, difficulty in videotaping should session have been ter displayed coordination or lack there- and, not, it minated the trial of.” admitting videotape court erred in into resolve, initially, question must playing evidence it before the may, by invoking a defendant whether appel trial. videotape3 shows that require rights, room, Miranda videotaping lant was taken into name, cease session such as this. asked to state his and was then record, timely requested inclusion of "the exhib- 2. does contend that he was enti attorney deciding post-trial during pre-trial, tled to consult whether to its filed trial and provide sample, breath see Forte 51(b); proceedings”. Tex.R.App.P. Dur See cf. State, 89, (Tex.Crim.App. 91-93 404, (Tex.Crim. rough 405 1986), rights appellant contend that his nor does 40.09, (under App.1985) 1 of former article under Miranda and Edwards v. 451 Procedure, the Texas "exhibits Code of Criminal 1880, 477, (1981), U.S. 68 L.Ed.2d 378 101 S.Ct. part appellate record which shall be are included, continued to ask were violated when appellant not”). designated or Accord- whether sample despite his re for a breath ingly, authority our under have exercised McCambridge quest for See counsel. 51(d) Appellate rule Rules of Proce- of the Texas 499, (Tex.Crim.App.1986). dure and directed the clerk of trial have original videotape provide court to for our Although initially was not in- inspection. us, appellant, cluded in the before in his record designation to be included material

917 videotape appellant requested It is well-settled that evidence that of counsel and “testimonially incriminates” defendant the assistance we further amendment, present Schmer Miranda protected in the case no by the fifth hold that 765, trial California, ber v. U.S. 86 occurred when the court 384 violation 1826,1832,16 (1966), 908 mitted the to view the video S.Ct. L.Ed.2d videotape. Accordingly, the accused a we will ad- compulsion which makes question of evidence does not dress the the trial source real or Schmerber, permitting to hear the fifth amendment. court erred in violate 86 once U.S. at S.Ct. at 1832. Evidence audio 384 voice, demeanor, appellant sought the assistance of counsel.4 person’s such scope is outside the physical characteristics C., 442 In Fare v. Michael U.S. against protection self-incrimination. (1979), 61 L.Ed.2d 197 the Su- State, See Mclnturf v. preme Court characterized the (Tex.Crim.App.1976) quoting Moulton v. holding “rigid as a rule that an accused’s per se attorney request for an an invoca- 1972). Thus, appellant’s complaint rights, requir- tion his Fifth amendment permitting the viewer to determine the Fare, interrogation that all cease.” question of intoxication based on 99 S.Ct. at 2569. Accord- U.S. speaking and lack of coor- lant’s manner ingly, the has held that when an Court precisely type dination concerns evi- right has to have coun- accused invoked does not dence which the amendment interrogation, sel custodial Granberry *5 No. B14-85- protect. es- right of that cannot be valid waiver Dist.], (Tex.App. 815-CR [14th —Houston showing by respond- tablished (co- 18,1987, pet.) (not yet reported) no June inter- police-initiated ed to further custodial non-testimonial, are thus tests ordination rogation. Edwards 451 U.S. only ver- Miranda may be used to exclude 484, 101 L.Ed.2d State, testimony); Delgado v. bal (1981). question to be The threshold Antonio —San determined, therefore, com- is whether the pet.) of (videotape defendant from plained-of evidence stems custodial at trial forming sobriety test shown field interrogation. deleted was non-testimo- portion with audio Questioning normally at which amend- scope of fifth nial and outside custody and not inter tendant to arrest Housewright v. protection). See also ment entitled rogation from defendant is State, 225 S.W.2d 417 (Tex.Crim.App.1949) protection under the fifth amendment. “moving (admission pic- into evidence Innis, 446 U.S. 291, 301, Rhode Island v. his arrest of defendant made after tures” (1980); 1682, 1689, 64 L.Ed.2d 297 100 S.Ct. driving not violate intoxicated did for while McCambridge, In the at 505. delin- “witnesses could constitution because by police questions appellant at the peculiarities of eate address, name, tele asking appellant alleged and de- scene of the offense number, place employment phone give a basis actions in order meanor and types questions which fall those within intoxicated condi- opinion as to his of their normally and custo are attendant to arrest but a tion; to us to be and it seems protected interrogation dy are not they delineation of what saw ... clearer no fifth the fifth amendment. could be such a scene thus shown ask by the amendment violation is shown immediately pictures taken after series questions. of such apprehension instead [defendant’s] addition, questions we hold that eyewitnesses testifying only memo- from condition, physical concerning appellant’s hold that ry”). Thus, vio- we sick, in- appellant was such whether police continued lation occurred when the Thus, trial, question intoxilyzer of whether test. at the audio 4. The record reflects permitted hear this should be was turned off us. is not before stated the result where the officer diabetic, jured, epileptic, addition, or and whether faculties. we can see appellant any physical had disabilities or why custody no reason would impairments, questions legitimate are date, time, asked to day, be state the police any concern to the time a other than to test his mental faculties and custody is arrested and taken into place. orientation to time and While police responsible, to will be some de- might these factors completely be innoc- gree, person’s for the arrested care and upon type uous arrest another physical well-being. legit- Because of this crime, in a while intoxicated case concern, questions imate we hold that such questions, incorrectly, these if answered among types questions are also those may provide very with the evi- normally custody, attendant to arrest and required dence that the state interrogation protected by and are not prove: the defendant did not have fifth amendment. normal use of his mental faculties. conclude, however, questions

We questions concerning hold concerning appellant last what and when appellant when and last ate and ask- what date, asking appellant ate and to state the date, day, interroga- and time were day, interrogation subject time were protection tion within the the fifth protection fifth amendment and that amendment. asking of such hold, however, sought of counsel violated error in assistance appellant’s rights amend- permitting under to hear the “interrogation” ment. The term under Mi- concerning answers what actions, words, ques- refers to randa and when last ate was cured tioning part introduced such when himself evi reasonably likely should know are dence at trial. called as a wit Innis, incriminating response. elicit an Rosser, testified that he ate ness Jack who U.S. at 100 S.Ct. at 1689. “Incrimina- p.m. on the lunch at 4:00 ting response” any response— refers to prior appellant’s early morning ar date inculpatory exculpatory —that rest. When a defendant offers the same *6 prosecution may seek to introduce at to, he testimony objected as that cannot trial. at 1690 n. 5. Id. complain appeal on of the admission that State, 685 testimony.6 Maynard v. While, ordinarily, questions such as (Tex.Crim.App.1985); v. Womble you you did and “what did “when last eat” might reasonably expected eat” not to 1981). Thus, permit incriminating response, pros- by

elicit an in error is shown in- of the ting jury ecution of an offense for while to hear this rele- videotape. toxicated such factors become attempting prove the vant to the state in per Finally, hold that error on due to the effect of such factors police officer’s mitting jury to hear the level of the de- the alcohol concentration concern appellant’s answers ability fendant5 and on the defendant’s date, harmless day, and time was maintain normal use of his mental and corollary rule that the harmful Although expert 6. The to this none of the witnesses testified directly concerning improperly of food on the is not the effect admitted evidence effect of level, ques- meet, hypothetical alcohol concentration by seeks to the fact that a defendant cured assuming tions at trial included destroy, explain the introduction of or it consuming did not eat while certain amounts evidence, Maynard, rebutting 685 S.W.2d at see addition, expert testi- alcohol. In one witness testimony applicable here. Rosser's is not prolonged fied fast such as that "a on a meet, destroy, appellant’s rebut an- did actually carbohydrate [may not be] zero diet ... to the concern- swers on the alcohol, intoxicated on ace- intoxicated on but Instead, Ros- ate. when and what he last appears generated by body. tone” it ap- testimony entirely was consistent ser's eat, eating, consuming failing that while pellant’s answers. least effect on the alcohol alcohol has at concentration level of the some body. “right beyond a Tex.R. contends that he was denied his reasonable doubt. See 81(b)(2). App.P. Because answer- counsel” when trial court refused attorney’s questions correctly, appel- permit appellant’s paralegal to ed each of these trial, helped during defense could sit at the counsel table lant’s complaining emphasizes heard “is when the this videotape, it to demonstrate was denied effective assistance served event, paralegal In had normal use of his mental counsel.” was Accordingly, appel- mitted to remain the courtroom faculties. we overrule point proceedings cites no au- lant’s third error. thority require that would the trial court to error, point appel fourth permit non-lawyer personnel to sit at the erred in lant contends that trial court counsel table. we overrule requested failing to submit to appellant’s fifth of error. regarding instruction certification judgment affirmed. trial court’s testing breath machine and the machine operator techniques used admin WHITHAM, J., dissents. istering the test. See Tex.Rev.Civ.Stat. 6701Z-5, 3(b) (c) (Vernon &

Ann. art. WHITHAM, Justice, dissenting. trial, Supp.1987). appellant objected At I respectfully I dissent. would sustain test results re fourth of error and there was evidence that the basis that ex and remand for reasons verse breath test machine followed my dissenting opinion Moseley pressed in procedures outlined di scientific (Tex.App. 696 S.W.2d 934 — Dallas Department rector Texas of Public 1985, pet. ref’d). Safety operator’s cer the machine qualification tificate of the ma opera

chine the best evidence of qualifications. objec

tor’s Each these properly

tions were Neverthe overruled.

less, appellant contends that he was enti concerning compli

tled instruction section 3 of

ance with article 67011-5 the Texas Revised Civil Statutes. We dis WARD, al., Appellants, L. et Aaron agree. Moseley ref’d), pet. this —Dallas TITLE TEXAS NATIONAL DALLAS court in the held absence of fact COMPANY, al., Appellees. et concerning per issue test *7 according approved formed to the methods No. 05-86-00044-CV. Department Safety, of Public a de Appeals of Court of fendant is not an instruction entitled to Dallas. submitting jury. Moseley, this issue to the Although appellant at 937. July 1987. contends in that a fact issue exist brief Rehearing Sept. Denied concerning compliance ed with section 3 of 67011-5, article he has not cited where

the record such evidence can be found.

Accordingly, appellant has er waived

ror. See Cook v. 74(f).

(Tex.Crim.App.1980); Tex.R.App.P. point of er

We overrule fourth

ror.

Appellant’s complaint under error unclear.