Fischer v. State

252 S.W.3d 375 (2008)

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Nature of the Case

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Facts

Trooper Martinez turned on his dashboard-mounted video camera and announced, on tape, that he was pulling over a driver who wasn't wearing a seatbelt. D parked his truck in his apartment complex and Trooper Martinez approached and began questioning him. All of that questioning was recorded through the body microphone and captured on camera. Almost immediately the Trooper suspected that D was drunk. Trooper Martinez told D to stay where he was, and the trooper walked back to his patrol car and dictated into his microphone that D had 'glassy, bloodshot eyes' and 'slurred speech.' The trooper stated that he had smelled 'the strong odor of alcoholic beverage.' The trooper returned to the truck and administered a horizontal gaze nystagmus (HGN) test. Trooper Martinez again left D and returned to his patrol car and recorded the following observations: Subject has equal pupil size, equal tracking, has a lack of smooth pursuit in both eyes and has distinct nystagmus at maximum deviation in both eyes. Subject also has onset of nystagmus prior to forty-five degrees in both eyes. Trooper Martinez also dictated into his microphone: (1) he stated that he had seen a 'wine opener' in D's truck; (2) he repeated that there was a strong odor of alcohol on D's breath; and (3) he again noted that D had glassy, bloodshot eyes and 'slurred speech.' The trooper then had D perform field sobriety tests. The trooper then returned to his patrol car and dictated on tape that 'subject gave several clues,' including the fact that D had started too soon, lost his balance while being given instructions, failed to touch his heel to his toe, 'stepped off the line two times,' made an 'improper turn,' and used his hands for balance. D was told to perform a 'one-leg stand' test. Trooper returned to his patrol car where he verbally recorded that D 'gave several clues' to intoxication and noted that D swayed, hopped, and put his foot down twice. D was eventually arrested for DWI. D filed a motion to suppress the audio portion of the patrol-car videotape, claiming that it contained Trooper Martinez's 'bolstering, self-serving statements about what he was allegedly doing and seeing.' The court concluded that it was admissible as a 'present sense impression.' D pled nolo contendere and appealed the trial court's ruling on his motion to suppress The court of appeals held that Trooper Martinez's recorded commentary did not qualify as a present sense impression: the comments were a calculated narrative statement in which Martinez does not merely explain or describe events, but participates in and even creates some of the events he reports in the course of collecting evidence. . . . The trooper recorded his comments not as an objective observer, but as a law enforcement officer, as a lay witness, and as an expert witness cataloging evidence and opinions for use in D’s prosecution. P appealed.