VIII. Video

A. PARTS OF PREDICATE CAN BE INFERRED

Roy v. State, 608 S.W.2d 645 (Tex.Crim.App. [panel op.] 1980).

Sims v. State, 735 S.W.2d 913 (Tex.App.-Dallas 1987, pet. ref’d) 

That machine was operating properly can be inferred from evidence and testimony supporting predicate can come from non-operator.

B. NEW PREDICATE REPLACES EDWARDS

Leos v. State, 883 S.W.2d 209 (Tex.Crim.App. 1994).

Rule 901 of Rules of Criminal Evidence controls on issue of proper predicate for admission of videotapes.

C. OPERATOR QUALIFICATIONS

Holland v. State, 622 S.W.2d 904 (Tex.App.-Fort Worth 1981, no pet.).

No special training on use of video equipment is necessary if operator has basic knowledge of operating procedures or instructions.

D. AUTHENTICATION

Fowler v. State, NO. PD-0343-17, 2018 Tex.Crim. App. LEXIS 124 (2018).

This opinion comes from a theft case where survellience video footage was obtained from a Family Dollar store. The video footage was not in a format that allowed it to be copied, therefore, the officer recorded it on his department camera. The video footage did not contain any audio. Instead of calling someone from the store, the video footage was authenticated through the officer and with a receipt, establishing a date and time, found during their investigation. The trial court allowed the video in. The court of appeals reversed the conviction based on the video not being properly authenticated. This Court held that although video is most commonly authenticated through testimony of a witness with personal knowledge of the scene, it is NOT the ONLY way. It can also be authenticated with evidence of “distinctive characteristics and the like,” which include “the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”

E. SUPPRESSIBLE ITEMS

  1. INVOCATION OF RIGHT TO COUNSEL
    • Opp v. State, 36 S.W.3d 158 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d).
    • Gray v. State, 986 S.W.2d 814 (Tex.App.-Beaumont 1999, no pet.).
    • Loy v. State, 982 S.W.2d 616 (Tex.App.-Houston [1st Dist.] 1998, no pet.).
    • Hardie v. State, 807 S.W.2d 319 (Tex.Crim.App. 1991, pet. ref’d) but see
    • Griffith v. State, 55 S.W.3d 598 (Tex.Crim.App. 2001).
      • Jury should not have been allowed to hear defendant’s invocation of his right to counsel on videotape.
    • Kalisz v. State, 32 S.W.3d 718(Tex.App.-Houston [14th Dist.] 2000, pet.ref’d).
    • Dumas v. State, 812 S.W.2d 611 (Tex.App.-Dallas 1991, pet.ref’d).
      • Improper for jury to be allowed to hear officer give defendant his Miranda warnings and ask him if he wanted to waive his rights. Turning down volume to exclude defendant’s refusal could lead jury to conclusion he did in fact invoke his rights.
  2. INVOCATION OF RIGHT TO TERMINATE INTERVIEW
    • Cooper v. State, 961 S.W.2d 229 (Tex.App.-Houston 1997, no pet.).
      • Court of Appeals found that the question of “where is he“ upon being told about his right to an attorney did not constitute an invocation of his right to an attorney. Court further held that the defendant’s subsequent statement, “I’m not answering any questions“ was an invocation of his right to terminate the interview. This, like the invocation of right to counsel, should not have been heard by the jury and reversed the case. Court relied on Hardie v. State, 807 S.W.2d 319 Tex.Crim.App. 1991, pet. ref’d).
  3. EXTRANEOUS OFFENSES – IF OBJECTED TO
    • Johnson v. State, 747 S.W.2d 451 (Tex.App.-Houston [14th Dist.] 1988, pet. ref’d).
      • Extraneous offenses mentioned by defendant or police on tape must be objected to at time tape is offered or no error is preserved.

F. NOT SUPPRESSIBLE 

  1. AUDIO OF FST’S
    • Jones v. State, 795 S.W.2d 171 (Tex.Crim.App. 1990).
      • Even after invocation of Miranda rights, police requests that suspects perform the sobriety tests and directions on how suspects are to do the tests do not constitute “interrogation”; neither do queries concerning a suspect’s understanding of her rights. If the police limit themselves to these sorts of questions, they are not ”interrogating” a DWI suspect.
    • State v. Davis, 792 S.W.2d 751 (Tex.App.-Houston [14th Dist.] 1990, no pet.). 
    • Dawkins v. State, 822 S.W.2d 668, 671 (Tex.App.-Waco, 1991, pet. ref’d).
    • Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct 2638, 110 L.Ed.2d 528 (1990).
      • Audio portion of video need not be turned off after invocation of rights as they concern performance of sobriety tests so long as police questioning is of the type normally incident to arrest and custody and is not reasonably likely to elicit testimony.
    • Mathieu v. State, 992 S.W.2d 725 (Tex.App.-Houston [1st Dist.] 1999, no pet.).
      • An officer’s request that suspect perform sobriety tests and directions on how to do the tests do not constitute interrogation, nor do queries concerning a suspect’s understanding of his rights.
  2. FST REFUSAL
    • Rafaelli v. State, 881 S.W.2d 714 (Tex.App.-Texarkana 1994, pet. ref’d).
    • Dawkins v. State, 822 S.W.2d 668, 671 (Tex.App.-Waco, 1991, pet. ref’d)
    • Barraza v. State, 733 S.W.2d 379 (Tex.App.-Corpus Christi, 1987, pet. granted) aff’d 790 S.W.2d 654 (Tex.Crim.App. June 20, 1990)
      • Jury is allowed to hear defendant’s refusal to perform the field sobriety tests on the video. No distinction between allowing jury to hear about refusal to do FSTs or BTRs.
  3. VIDEO PORTION AFTER AUDIO SUPPRESSED
    • Fierro v. State, 969 S.W.2d 51 (Tex.App.-Austin 1998, no pet.).
    • Huffman v. State, 746 S.W.2d 212 (Tex.Crim.App. 1988).
      • So long as visual portions are true and correct, the video is admissible without sound.
  4. VOCATION OF RIGHT TO COUNSEL DURING BT REFUSAL
    • Compton v. State, No. 02-14-00319-CR, 2015 WL 4599367 (Tex. App.–Fort Worth 2015)
    • Stringer v. State, No. 2-02-283-CR, 2003 WL 21283181 (Tex.App.-Fort Worth, June 5, 2003, pet. ref’d.) (not designated for publication).
    • Griffith v. State, 55 S.W.3d 598 (Tex.Crim.App. 2001).
    • Halbrook v. State, 31 S.W.3d 301 (Tex.App.-Fort Worth 2000, pet. ref’d.).
    • Ex Parte Jamail, 904 S.W.2d 862 (Tex.App.-Houston [1st Dist.] 1995, pet. ref’d). 
      • Refusal to take breath test coupled with and based upon request to consult an attorney is admissible.
  5. VIDEO PORTION ADMISSIBLE EVEN IF AUDIO DID NOT RECORD
    • Akins v. State, No. 14-06-00545-CR, 2007 WL 1847378 (Tex.App.-Houston [14th Dist.] 2007, no pet.).
    • Burke v. State, 930 S.W.2d 230 (Tex.App.-Houston [14th Dist.] 1996 pet ref’d).
      • Video is admissible so long as predicate for introduction of photo is met.
  6. FIELD SOBRIETY TESTS ARE NON-TESTIMONIAL
    • Townsend v. State, 813 S.W.2d 181 (Tex.App.-Houston [14th Dist.] 1991, pet. ref’d).
      • The Fifth Amendment protects against testimonial communications. A compulsion that makes an accused a source of real or physical evidence does not violate the Fifth Amendment. Evidence such as a person’s voice, demeanor, or physical characteristics is outside the scope of protection against self-incrimination. Queries by the custodial officer regarding defendant’s name, address, height, weight, place of employment, or physical disabilities are the type of questions normally attendant to arrest and custody and do not constitute interrogation under the Fifth Amendment. Visual depictions of a sobriety test are not testimonial in nature and therefore do not offend the federal or the state privilege against self-incrimination.
  7. VERBAL FST’S /ALPHABET & COUNTING ARE NOT TESTIMONIAL
    • Gassaway v. State, 957 S.W.2d 48 (Tex.Crim.App. 1997).
      • A recitation of the alphabet and counting backwards are not testimonial in nature because these communications are physical evidence of the functioning of appellant’s mental and physical faculties. The performance of these sobriety tests shows the condition of a suspect’s body. This overrules Vickers v. State, 878 S.W.2d 329 (Tex.App.-Fort Worth 1994, pet. ref’d).
  8. RIGHT TO COUNSEL – MUST BE CLEARLY INVOKED
    • Hoff v. State, No. 09-15-00188-CR, 2016 WL 6110904 (Tex. App. – Beaumont 2016)
      • Upon being asked to agree to give a blood sample the Defendant responded, “I’ll give blood, whatever. Do I need to do this before I speak to my Attorney?” The Court holds this statement did not constitute invocation of right to an attorney. In so holding the Court offers that, “Not every mention of a lawyer is sufficient to invoke the Fifth Amendment.”
    • Halbrook v. State, 31 S.W.3d 301 (Tex.App.-Fort Worth 2000, pet. ref’d.).
    • Granberry v. State, 745 S.W.2d 34 (Tex.App.-Houston [14th Dist.] 1987) pet. ref’d, per curiam, 758 S.W.2d 284 (Tex.Crim.App. 1988).
      • Defendant’s request to make phone call to “find out” who his attorney is does not constitute request for attorney. No violation of right to counsel when defendant who has sought to terminate interview is videotaped performing FSTs.
    • State v. Norris, 541 S.W.3d 862, (Tex.App – Houston [14th District.])
      • Not every mention of a lawyer constitutes an invocation of a right to counsel. In this case, the Defendant indicated he wanted to call his sister so that she could try and locate a lawyer to represent him. The Court held it was a “forward-looking statement”, contemplating his sister’s starting the process of obtaining a lawyer. The Defendant’s statement was neither unambiguously a request for counsel nor an indication appellee wished to counsel present for further questioning,
  9. RIGHT TO REMAIN SILENT MAY NOT BE SELECTIVELY INVOKED
    • Anderson v. State, No. 2-05-169-CR, 2006 WL 744272 (Tex.App.-Fort Worth 2006, pdr dismissed) (not designated for publication).
      • After receiving Miranda warnings on the DWI videotape, the defendant answered questions selectively—some he answered and some he refused to answer. He did not terminate the interview. The defense argued the jury should not have been allowed to hear him refuse to answer certain questions. The Court held that while it is clear that the prosecution cannot use a defendant’s post-arrest silence to impeach him at his trial, an accused may not selectively invoke his right to remain silent. Therefore, the Trial Court did not abuse its discretion by admitting the portion of the videotape in which appellant refused to answer specific questions while answering others. 

G. ABSENCE OF VIDEOTAPE

  1. NOT GROUNDS FOR ACQUITTAL
    • Williams v. State, 946 S.W.2d 886 (Tex.App.-Waco 1997, no pet.).
    • Irion v. State, 703 S.W.2d 362 (Tex.App.-Austin 1986, no pet.).
      • Absence of videotape in DWI case is not grounds for acquittal.
  2. UNLESS DESTRUCTION OF TAPE IN BAD FAITH
    • State v. Isbell, No. 05-15-00506-CR, 2016 WL 1104984 (Tex.App.-Dallas 2016)
    • Gamboa v. State, 774 S.W.2d 111 (Tex.App.-Fort Worth 1989, pet. ref’d).
      • To support motion to dismiss based on destruction of video, said destruction must be shown to have been in “bad faith”.
  3. NO JURY INSTRUCTION FOR FAILURE TO TAPE
    • Platero v. State, No. A14-94-00403-CR, 1995 WL 144565 (Tex.App.-Houston [14th Dist.] 1995 pet. ref’d) (not designated for publication).
    • Logan v. State, 757 S.W.2d 160 (Tex.App.-San Antonio 1988, no pet.). 
      • No jury instruction on state’s failure to videotape defendant.
    • Manor v. State, No. 11-05-00261-CR, 2006 WL 2692873 (Tex.App.-Eastland, 2006, no pet.).
      • Where the DWI videotape was missing, the defendant was not entitled to a “spoliation” instruction. A defendant in a criminal prosecution is not entitled to a spoliation instruction where there is no showing that the evidence was exculpatory or that there was bad faith on the part of the State in connection with its loss.
  4. DESTRUCTION OF SCENE VIDEO WON’T SUPPORT SUPPRESSION OFSTATION VIDEO
    • Higginbotham v. State, 416 S.W.3d 921 (Tex.App.-Houston [1st Dist.] 2013, no pet.).
      • Destroyed in car video showing 30 seconds of Defendant driving with no erratic behavior, being able to stand on his own and having no trouble reaching for his wallet, would not have affected the outcome of prosecution of Defendant for driving while intoxicated (DWI), such that it was not material under Brady, where recording also contained audio of arresting officer’s comments that Defendant smelled of alcohol, had watery eyes, and slurred his speech; the Defendant also admitted to drinking four beers that evening, and a field sobriety test recorded at police station located five minutes from the place of arrest showed Defendant’s inability to follow instructions or demonstrate basic coordination. Defendant’s argument that station video should have been excluded because scene video was destroyed was properly denied.

H. SURREPTITIOUS AUDIO RECORDINGS

  1. PRE-ARREST
    • Wallace v. State, 707 S.W.2d 928 (Tex. App.-Texarkana 1986), affd, 782 S.W.2d 854(Tex.Crim.App. 1989).
      • Surreptitiously obtained audio recordings are admissible evidence on pre-arrest situations as long as no incriminating questions are asked without benefit of Miranda warnings.
  2. POST-ARREST
    • Meyer v. State, 78 S.W.3d 505 (Tex.App.-Austin 2002, pet. ref’d).
      • After arresting the defendant for DWI, he was placed in the back of the patrol unit and then officer went to search defendant’s car. As defendant sat in the patrol unit with doors closed and windows shut, he made oral statements that were recorded by the videotaping equipment. Details of the comments were not disclosed other than being characterized in the brief as an “acrimonious tirade profanely blaming his wife and the two officers for his plight”. Court holds there was no reasonable expectation of privacy in the patrol car and holds statement to be admissible.

I. DEFENSE RIGHT TO VIEW TAPE BEFORE TRIAL

Durhan v. State, 710 S.W.2d 176 (Tex.App.-Beaumont 1986, no pet.).

Defendant and/or attorney have right to view DWI video prior to trial. Failure to view won’t prevent tape’s being admitted into evidence.

Quinones v. State, 592 S.W.2d 933 (Tex.Crim.App. 1980), cert. denied, 101 S. Ct. 256. (1980).

DWI videotapes are discoverable.

J. TAPE MADE IN FOREIGN LANGUAGE

Leal v. State, 782 S.W.2d 844 (Tex.Crim.App. 1989). 

When tape is in foreign language, a translation by a sworn interpreter is necessary.

K. PROVIDING DEFENDANT WITH COPY OF DWI VIDEOTAPE

  1. DEFENDANT NEED ONLY BE GIVEN “ACCESS”
    • Lane v. State, 933 S.W.2d 504 (Tex.Crim.App. 1996).
      • Held Rule 38.22 that says State must provide a true and correct copy of tape to the defense before the twentieth day before the date of the proceeding is satisfied if the tape is “made available” to the defense.
  2. ACCESS TO THE TAPE IS NOT REQUIRED UNLESS THERE IS “CUSTODIAL INTERROGATION”
    • Mann v. State, 13 S.W.3d 89 (Tex.App.-Austin 2000, Affirmed other grounds 58 S.W.3d 132 [Tex.Crim.App. 2001]). 
      • Where there were no oral statements resulting from custodial interrogation offered on the DWI videotapes, the rule that said tapes must be provided to defense no later than the twentieth day before the trial does not apply.

L. NO SOUND = NO PROBLEM

Aguirre v. State, 948 S.W.2d 377 (Tex.App.-Houston [14th Dist.] 1997, pet. ref’d).

Absence of sound on DWI video will not affect its admissibility.

M. MOBILE VIDEO CAMERA TAPE ADMISSIBLE

Poulos v. State, 799 S.W.2d 769 (Tex.App.-Houston [1st Dist.] 1990, no pet.).

The field sobriety test was videotaped by the officer from a camera mounted on his dashboard. This videotape was not testimonial in nature and therefore did not offend the Fifth Amendment privilege.

N. STATE MAY SUBPOENA/OFFER DEFENDANT’S COPY

Adams v. State, 969 S.W.2d 106 (Tex.App.-Dallas 1998, no pet.).

Where the State or police inadvertently destroyed state’s copy of DWI videotape after copy had been made for defendant, it was proper for State to subpoena defendant’s copy and introduce it into evidence.

O. LOSING VIDEOTAPE BETWEEN TRIAL AND APPEAL DOES NOT REQUIRENEW TRIAL

Yates v. State, 1 S.W.3d 277 (Tex.App.-Fort Worth 1999, pet. ref’d).

The fact that a videotape is lost between trial and appeal is not conclusive as to whether a new trial is granted. If the issue on appeal is intoxication, the video needs to be close in time to driving to merit a reversal.

P. PROBLEM OF OTHER STOPS BEING VISIBLE ON DWI TAPE

Hackett v. State, No. 2-02-112-CR, 2003 WL 21810964 (Tex.App.-Fort Worth, 2003, no pet.)(not designated for publication).

The defense objected when it discovered, while the jury was deliberating, that the DWI tape admitted into evidence and being viewed by the jury had other stops on it. The trial court did not allow the defendant to examine the jurors to see if watching the tape of the other stops affected them. The Court found there was no error because the defendant did not show that the jurors’ viewing other stops harmed the defendant and because the judge had properly instructed them not to consider those extraneous portions of the tape.

Practice tip: If your tape has extraneous stops on it, edit them out of the tape before you offer it into evidence. 

Q. VIDEO PART OF TAPE MAY BE ADMISSIBLE WITHOUT OPERATOR’S TESTIMONY

Reavis v. State, 84 S.W.3d 716 (Tex.App.-Fort Worth, 2002, no pet.).

Page v. State, 125 S.W.3d 640 (Tex.App.-Houston [1st Dist.] 2003, pet. ref’d).

These cases discuss the way you can admit a videotape even if you don’t have the officer/witness available who was in the room with the defendant. The authority for admitting at least the video part of the tape falls under what the federal courts have called the “silent witness” rule. The key is whether there is sufficient evidence to enable a reasonable juror to conclude that the videotape is what the State claimed it to be. A showing of how the tape is loaded, that the machine was working should suffice. Both cases cited above involved a store security video.

Johnson v. State, No. 2-04-497-CR, 2005 WL 3244272 (Tex.App.-Fort Worth 2005, pet. ref’d) (not designated for publication). 

In-car videotape provided the only basis for the traffic stop and officer/operator of the tape was unavailable to testify as he had been killed by a drunk driver subsequent to this arrest. Court held the tape alone, without the officer’s testimony, was sufficient proof that the stop of the defendant’s car was proper.

R. INABILITY TO ID ALL BACKGROUND VOICES NOT A PROBLEM

Jones v. State, 80 S.W.3d 686 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

Predicate for admitting video is under Rule 901 of the Texas Rules of Evidence. Nothing in that rule requires that every voice on the tape be identified by name.

Allen v. State, 849 S.W.2d 838 (Tex.App.-Houston [1st Dist.] 1993, pet. ref’d).

This opinion applied the old standard from the Edwards case test for tape admissibility and held that even under that test, the requirement that speakers be identified does not include background voices.

Vasquez Garza v. State, 794 S.W.2d 530 (Tex.App.-Corpus Christi 1990, pet. ref’d).

Under Edwards test, it was sufficient that officer was able to identify the background voices as officers, even though the officers could not be named.

S. OFFICER’S NARRATIVE ON PERFORMANCE OF FST’S

  1. CUMULATIVE
    • Evans v. State, No. 14-05-00332-CR, 2006 WL 1594000 (Tex.App.Houston [14th Dist.] 2006, pet. ref’d).
      • In this case the defendant objected to admissibility of the audio portion of the DWI tape because of the officer’s verbal narrative conclusions about defendant’s performance on the FSTs. Because the jury had already heard the officer describe the same matters on direct without objection, the taped comments were merely cumulative and did not require reversal.
  2. INADMISSIBLE HEARSAY
    • Fischer v. State, 252 S.W.3d 375 (Tex.Crim.App.2008).
      • At a Motion to Suppress hearing, defendant sought to suppress the sound on the videotape where the officer’s recorded commentary of what was occurring during traffic stop and where the officer dictated on videotape his observations of DWI suspect. The trial Court denied the Motion to Suppress; the defendant pled nolo and appealed. The Court of Appeals rejected the State’s argument that these statements were admissible as “present sense impression” and held that the comments were the equivalent to police report or offense report offered for truth of matter asserted, and thus, inadmissible hearsay, and the case was reversed and remanded.

T. NO REQUIREMENT THAT POLICE ACTUALLY VIDEOTAPE DWI ARRESTS

Rodriguez v. State, No. 04-12-00528-CR, 2013 WL 5656194 (Tex.App.-San Antonio 2013, pdr ref’d) 

Judge correctly sustained State objection to defense attorney telling jury that the law required that DWI suspects be videotaped. The opinion from the Texas Attorney General states certain counties are required to obtain and maintain video equipment. See Tex. Atty Gen. Op. No. GA-0731. The opinion does not, however, require that all law enforcement vehicles be equipped with video recorders or that each law enforcement encounter with the public be videotaped. Because Texas law does not require that all law enforcement vehicles be equipped with video recorders, the Trial Court did not err in sustaining the State’s objection during voir dire, nor did it err in advising the venire the law was not as Rodriguez’s counsel stated. Accordingly, we hold there was no basis for the motion for mistrial, and thus the Trial Court did not abuse its discretion in denying it.