Faustino Perez v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-92-017-CR FAUSTINO PEREZ, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY, NO. 362,544, HONORABLE DAVID PURYEAR, JUDGE PRESIDING PER CURIAM A jury found appellant guilty of driving while intoxicated and assessed punishment at incarceration for two years and a $2000 fine. Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (Supp. 1992). We affirm. On the night of August 31, 1991, a car driven by appellant "rear-ended" another vehicle at an Austin intersection. Austin police officer Jimmie Davenport happened onto the scene moments after the collision and saw appellant drive away. The officer gave chase and, after a five-block pursuit, Davenport succeeded in stopping appellant's car. When appellant got out of the car to speak to the officer, Davenport noticed the odor of alcoholic beverage. He also noticed the odor of human feces, as appellant had soiled his pants. The officer asked appellant why he left the scene of the accident, to which appellant replied that he had swallowed some cocaine. After appellant unsuccessfully performed several field sobriety tests, he was arrested for driving while intoxicated. At the police station, appellant was videotaped performing other sobriety tests and answering questions. In his tenth point of error, appellant contends that his statement to the officer concerning the cocaine should have been suppressed because it was the product of custodial interrogation and he had not been advised of his rights. The trial court overruled appellant's objection after finding that the statement was not made in response to interrogation. The record fully supports this ruling. Not all police questioning is "interrogation" within the meaning of Miranda v. Arizona, 384 U.S. 436 (1966) and Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Supp. 1992). For example, routine inquiries and broad general questions such as "what happened" upon arrival at the scene of a crime are not interrogation. Jones v. State, 795 S.W.2d 171, 174 n. 3 (Tex. Crim. App. 1990); see Loar v. State, 627 S.W.2d 399 (Tex. Crim. App. 1981). The trial court could reasonably conclude that when he asked why appellant left the scene of the accident, the officer was engaged in routine, general questioning not calculated to elicit an incriminating response. We note also that appellant's statement that he had swallowed cocaine was not responsive to Davenport's question, and was in the nature of a volunteered statement. See Stevens v. State, 671 S.W.2d 517 (Tex. Crim. App. 1984). The point of error is overruled. In points of error one through five, appellant contends the trial court erroneously permitted the State to use for impeachment purposes statements he made on the videotape. Appellant argues that these statements were involuntarily made, and their use violated his rights under the Fifth and Fourteenth Amendments; art. I, §§ 10 and 19 of the Texas Constitution; and Tex. Code Crim. Proc. Ann. arts. 38.22 and 38.23 (1979 & Supp. 1992). We find that these points were not preserved for review. Appellant filed a motion to suppress the videotape alleging, among other things, that "all statements made by the Defendant were involuntary and coerced and enticed from the Defendant by law enforcement officers after his arrest and during the entire time that the video/audio tape was being made." We have carefully reviewed the record and can find no written or oral ruling by the court granting or overruling this motion in whole or in part. A pretrial hearing was held on the motion to suppress, but the trial court reserved its ruling until trial. On the day of trial, there was a short discussion of appellant's motion in limine outside the jury's presence and before testimony began. Contrary to the assertion made in appellant's brief on appeal, the trial court did not at this time grant appellant's motion to suppress or in any way indicate that it found the statements on the videotape to be involuntary. The most that can be gleaned from the record at this point is that the court granted appellant's motion in limine requesting that the videotape not be admitted before the jury without a ruling by the court on its admissibility. During Davenport's testimony, the State offered the videotape in evidence. Defense counsel stated that she had no objection. The statement of facts then recites that "State's 2 [the videotape] played for the jury." There is no indication that any portion of the tape, visual or oral, was deleted or omitted at this time. As the trial proceeded, incidents occurred which hint at some ruling by the court, not in the record, excluding a portion of the videotape from evidence. For instance, during cross-examination of Davenport, defense counsel asked if appellant told the officer that he had diarrhea. The prosecutor objected that "if we're going to get into the statements, then we need to get into all of them." The objection was overruled, and the officer answered that appellant told him he had diarrhea when "we got into the video room." Later, during redirect examination, the prosecutor asked Davenport if he had "an opportunity to hear [appellant] say the word `cocaine' at any other point while you were with him on that day." Ruling that defense counsel had opened the door to this question by her cross-examination of the officer, the trial court overruled appellant's objection that the prosecutor was "going . . . into stuff that's been suppressed on the video." However, the court stated that it wanted the question "narrowly posed," "meaning that we don't need to go into all the rest of that material that's been suppressed." While it is obvious from these exchanges that some portion of the videotape had been ruled inadmissible by the court, it is impossible to determine from the record precisely what material was suppressed or why. The incident that forms the basis for these points of error occurred during the State's cross-examination of appellant. Appellant testified on direct that he drank two beers on the day of his arrest. The prosecutor asked appellant if he told the officers that he drank five beers. Appellant replied that he did not remember. The prosecutor then asked the court's permission to show the videotape for impeachment. Saying that it did not want to "do this piecemeal," the court instructed the prosecutor to complete her cross-examination. The prosecutor asked several more questions concerning matters appellant allegedly told the officers and then, over appellant's objection that the proper predicate had not been laid, the court granted the State's request "to publish that portion of the video to the jury." At this point the statement of facts reflects that "a portion of State's Exhibit No. 2 was played for the jury." The portion of the videotape that was played at this time is not apparent from the record. The appellant must see that a sufficient record is presented to show error requiring reversal. Tex. R. App. P. Ann. 50(d) (Pamph. 1992). In this cause, appellant asks this Court to reverse his conviction because allegedly involuntary statements found on the DWI videotape were admitted in evidence. But appellant failed to secure a ruling for the record on his motion to suppress the videotape on this ground. When the videotape was first introduced in evidence and played for the jury, appellant expressly stated that he had no objection. Was the entire tape, audio and video, played for the jury at this time? If so, appellant waived any error with regard to the admission of the tape. If not, what portion of the videotape was withheld from the jury? The record does not disclose the answers to these questions. Finally, when that portion of the tape of which appellant now complains was played, presumably for the first time, appellant failed to see to it that the record clearly reflects what the jury saw and heard. Given the state of the record, this Court lacks the information necessary to answer points of error one through five. They are, accordingly, overruled. In point of error six, appellant complains that the State should not have been permitted to impeach him with respect to the numbers of beers he drank on the day in question because this was a collateral matter. See Shipman v. State, 604 S.W.2d 182 (Tex. Crim. App. 1980). We disagree. The number of alcoholic beverages consumed is not a collateral matter in a prosecution for driving while intoxicated. To the contrary, it is highly relevant. In any event, this was a subject first broached by appellant during his direct testimony, when he told the jury he had consumed two beers on the day of his arrest. The point of error is overruled. In point of error seven, appellant asserts that the necessary predicate for impeachment was not laid because he did not deny telling the officers that he drank five beers. Appellant relies on federal authority, but the applicable federal rule of evidence differs from the Texas rule. See Fed. R. Evid. Ann. 613 (West Supp. 1992). Under our rule, before a witness may be impeached with a prior inconsistent statement he must be told the contents of such statement and given an opportunity to explain or deny it. If the witness unequivocally admits having made such statement, the statement may not be proved by extrinsic evidence. Tex. R. Crim. Evid. Ann. 612(a) (Pamph. 1992). In this cause, appellant did not unequivocally admit telling the officer that he drank five beers. Instead, he testified that he did not remember the statement. Under rule 612(a), extrinsic evidence of the prior statement was admissible. The point of error is overruled. (1) In point of error eight, appellant contends the trial court erroneously permitted the jury to hear him assert his right to remain silent on the videotape. Gathwright v. State, 698 S.W.2d 698 (Tex. App. 1985, no pet.); see Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991); Miffleton v. State, 728 S.W.2d 880, 884 (Tex. App. 1987), aff'd, 777 S.W.2d 76 (Tex. Crim. App. 1989). As before, however, this point was not preserved for review because it cannot be determined from the record what the jury heard. Under this same point of error, appellant multifariously argues that the prosecutor urged the jury to consider appellant's assertion of his constitutional rights as evidence of guilt during her opening statement and her closing argument. An examination of the statement of facts reflects that these contentions are factually incorrect. Point of error eight is overruled. Finally, in point of error nine, appellant urges that the trial court erred by refusing his request for an instruction on whether his statements were voluntarily made. Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (1979). Such an instruction is required only if the jury hears evidence raising the issue. Brooks v. State, 567 S.W.2d 2, 3 (Tex. Crim. App. 1978); Myre v. State, 545 S.W.2d 820, 825 (Tex. Crim. App. 1977). We have examined the statement of facts, particularly those portions cited by appellant in support of this contention, and find no evidence raising an issue before the jury as to the voluntariness of appellant's statements to the police. Point of error nine is overruled. The judgment of conviction is affirmed. [Before Justices Powers, Jones and Kidd; Justice Powers not participating] Affirmed Filed: June 17, 1992 [Do Not Publish] 1. In addressing points of error six and seven, we have assumed that the relevant portion of the videotape was played for the jury. In fact, as discussed previously, it cannot be determined what was played for the jury to impeach appellant's testimony. For this reason, these points of error were not, strictly speaking, preserved for review.