Fischer v. State

OPINION

delivered the opinion of the Court

This case presents a novel question in Texas evidentiary law: Are a law enforcement officer’s factual observations of a DWI suspect, contemporaneously dictated on his patrol-car videotape, admissible as a present sense impression exception to the hearsay rule under Tex.R. Evid. 803(1)?1 They are not. An officer may testify in the courtroom to what he saw, did, heard, smelled, and felt at the scene, but he cannot substitute or augment his in-court testimony with an out-of-court oral narrative. This calculated narrative in an adversarial setting was a “speaking offense report.” It was not the type of unreflective, street-corner statement that the present sense impression exception to the hearsay rule is designed to allow. We therefore agree with the Fourteenth Court of Appeals, which had held the same.2

I.

At about 1:40 a.m. on May 29, 2004, DPS 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. After the driver, appellant, parked his truck in his apartment complex parking *377lot, Trooper Martinez approached appellant and began questioning him. All of that questioning was recorded through Trooper Martinez’s body microphone and captured on camera.

Trooper Martinez asked for appellant’s driver’s license and insurance; appellant responded that he had just moved. The trooper then asked appellant whether he had “any alcohol in the car,” and quickly added, “I smell alcohol.” Trooper Martinez then asked appellant, “How much alcohol have you had this evening?” And appellant replied, “Three wines.” Trooper Martinez told appellant to stay where he was, and the trooper walked back to his patrol car and dictated into his microphone that appellant had “glassy, bloodshot eyes” and “slurred speech.” The trooper stated that he had smelled “the strong odor of alcoholic beverage.”

Trooper Martinez then walked back to appellant and asked him if there was any reason why he was not wearing a seatbelt. Appellant said that he was “depressed” over his recent divorce. Trooper Martinez asked appellant if he had any weapons or drugs. Appellant said “No,” but Trooper Martinez opened the driver’s door of appellant’s truck and got inside to make a cursory search. Finding nothing, the trooper got back out and told appellant, “I’m going to conduct a small exam of your eyes.” He directed appellant to stand outside the range of the video camera and administered a horizontal gaze nystagmus (HGN) test.

After the HGN test was completed, Trooper Martinez again left appellant 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 appellant’s truck; (2) he repeated that there was a strong odor of alcohol on appellant’s breath; and (3) he again noted that appellant had glassy, bloodshot eyes and “slurred speech.”

The trooper then told appellant to stand in front of the patrol car and asked him to perform field sobriety tests. After appellant performed the heel-to-toe test, Trooper Martinez again told appellant to “stay right here,” while he returned to his patrol car and dictated on tape that “subject gave several clues,” including the fact that appellant 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.

Trooper Martinez returned to where appellant was standing and told him to perform a “one-leg stand” test. After that test was completed, the trooper told appellant to remain where he was, and the trooper once again returned to his patrol car where he verbally recorded that appellant “gave several clues” to intoxication and noted that appellant swayed, hopped, and put his foot down twice. Trooper Martinez recorded that he had given appellant “a second chance to do it,” but appellant “indicated the same clues.” Trooper Martinez then dictated: “Subject is going to be placed under arrest for DWI.” The videotape then shows Trooper Martinez returning to appellant, saying, “I believe you are drunk,” and arresting him.

After appellant was charged with DWI, he 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.” It was “a highly prejudicial and inflammatory narrative” of what Trooper Martinez *378would have the viewer believe was taking place. The trial judge denied appellant’s motion and concluded that the audio narrative was admissible as a “present sense impression.”3 Appellant then pled nolo contendere and appealed the trial court’s ruling on his motion to suppress Trooper Martinez’s orally recorded factual observations during his DWI investigation.

The court of appeals concluded that the trial court had erred. It held that Trooper Martinez’s recorded commentary did not qualify as a present sense impression: Put bluntly, “Martinez’s narrative is the functional equivalent of a police offense report[.]”5

Instead, his comments are 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.... It therefore appears that Martinez 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 [appellant’s] prosecution.4

We granted the State’s petition for review to decide this important issue of state evidentiary law which, we understand, has arisen in several other cases as well.6

II.

The hearsay doctrine, codified in Rules 801 and 802 of the Texas Rules of Evidence, is designed to exclude out-of-court statements offered for the truth of the matter asserted that pose any of the four “hearsay dangers” of faulty perception, faulty memory, accidental miscommunication, or insincerity.7 The numerous exceptions to the hearsay rule set out in Rules 803 and 8048 are based upon the rationale that some hearsay statements contain such strong independent, circumstantial guarantees of trustworthiness that the risk of the four hearsay dangers is minimal while the probative value of such evidence is high.9 *379The twenty-four hearsay exceptions listed in Texas Rule 803 may be roughly categorized into (1) unreflective statements, (2) reliable documents, and (3) reputation evidence. The rationale for all of the exceptions is that, over time, experience has shown that these types of statements are generally reliable and trustworthy.

The first set of hearsay exceptions, unreflective statements, are “street corner” utterances made by ordinary people before any thoughts of litigation have crystallized.10 These unreflective statements used to be called “res gestae,” an imprecise Latin legalese term,11 because the speaker was not thinking about the legal consequences of his statements. In most instances, the speaker was not thinking at all; the statement was made without any reflection, thought process, or motive to fabricate or exaggerate.12

*380One of those “unreflective statements” exceptions to the hearsay rule is defined in Rule 803(1), the present sense impression:

A statement describing or explaining an event or condition made while the de-clarant was perceiving the event or condition, or immediately thereafter.13

Statements that qualify under this exception are not excluded by the hearsay rule, even though the declarant is available.14

Texas was the first jurisdiction to recognize this exception by name,15 and its leading case, Houston Oxygen Co. v. Davis,16 is cited in the advisory committee’s note to Federal Rule 803(1).17 The facts in that case are typical of those that support the exception. At trial, the passenger of a car going down the highway testified that he saw another car pass theirs going “sixty to sixty-five miles” an hour and that it was “bouncing up and down in the back and zig zagging.”18 The passenger then testified that the driver of the car turned to him and said that “they must have been drunk, that we would find them somewhere on the road wrecked if they kept that rate of speed up.”19 Sure enough, five miles down the road the speeding car hit another vehicle and caused the plaintiffs injuries. The Texas Supreme Court held that the passenger’s recitation of what the driver said to him at the time the speeding car passed them was admissible as a present sense impression because “[i]t is sufficiently spontaneous to save it from the suspicion of being manufactured evidence. There was no time for a calculated statement.” 20

The rationale for the exception is that the contemporaneity of the statement with the event that it describes eliminates all danger of faulty memory and virtually all danger of insincerity. This Court has previously explained that rationale:

If a person observes some situation or happening which is not at all startling or shocking in its nature, nor actually producing excitement in the observer, the observer may yet have occasion to comment on what he sees (or learns from other senses) at the very time that he is receiving the impression. Such a comment, as to a situation then before the declarant, does not have the safeguard of impulse, emotion, or excitement, but there are other safeguards. In the first place, the report at the moment of the thing then seen, heard, etc., is safe from any error from defect of memory of the declarant. Secondly, there is little or no time for calculated misstatement, and thirdly, the statement will usually be made to another (the witness who reports it) who would have equal opportunities to observe and hence to check a misstatement. Consequently, it is believed that such comments, strictly limited to reports of present sense-impressions, have such exceptional reliability as to warrant their inclusion within the hearsay exception for Spontaneous Declarations.21

*381The rule is predicated on the notion that “the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes.”22 It is “instinctive, rather than deliberate.”23 If the declarant has had time to reflect upon the event and the conditions he observed, this lack of contemporaneity diminishes the reliability of the statements and renders them inadmissible under the rule.24

Once reflective narratives, calculated statements, deliberate opinions, conclusions, or conscious “thinking-it-through” statements enter the picture, the present sense impression exception no longer allows their admission.25 “Thinking about it” destroys the unreflective nature required of a present sense impression.26

The State’s first ground for review claims that the court of appeals in this case held that Rule 803(8)(B), which ex*382plicitly excludes investigative reports by law enforcement from the public records exception to the hearsay rule, “trumps” Rule 803(1) and disallows any out-of-court factual observations by police officers. The court of appeals did not say this. Of course police officers, like the rest of humanity, may make spontaneous, unre-flective, contemporaneous present sense impression statements that qualify for admission under Rule 803(1).27 But the court of appeals appropriately looked to the rationale for excluding law enforcement reports under Rule 803(8)(B) by analogy.

Both the federal and Texas hearsay rules have always excluded the crime-scene or investigation observations of law enforcement officers because their factual observations, opinions, and narrations are made while the officer is “engaged in the often competitive enterprise of ferreting out crime.”28 Rule 803(8)(B) expressly excludes “[rjecords, reports, statements, or data compilations ... setting forth ... matters observed by police officers and other law enforcement personnel” in a criminal case.29 The reason for this exclu*383sion is the inherently adversarial nature of any on-the-scene or post hoc investigation of a criminal suspect.30 Congress explained the rationale for the rule excluding factual observations by investigating police officers from the public records exception to the hearsay rule:

Ostensibly, the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as rehable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.31

Although Rule 803(8)(B) does not “trump” Rule 803(1), the basis for exclusion of police reports and investigative recordings is exactly the same under both rules. The recorded factual observations made by police officers investigating a suspected crime are not the type of “non-reflective” street-corner statements of objective observers that the present sense impression exception is designed to allow.32 Courts admit present sense impression statements precisely because they are non-narrative, off-hand comments made without any thought of potential litigation by a neutral and detached observer without any motive to fabricate, falsify, or otherwise exaggerate his observations.33

*384Conversely, on-the-scene observations and narrations of a police officer conducting a roadside investigation into a suspected DWI offense are fraught with the thought of a future prosecution: the police officer is gathering evidence to use in deciding whether to arrest and charge someone with a crime.34 Calculation and criminal litigation shimmer in the air; the officer is gathering evidence, he is not making an off-hand, non-reflective observation about the world as it passes by.35 Similarly, factual observations, narrations, opinions, and conclusions made by a citizen or bystander that might be intended by the declarant to be made with an eye toward future litigation or evidentiary use are inadmissible under the rule.36

III.

In this case, Trooper Martinez turned on his patrol-car video camera and microphone even before he detained appellant. He did this to accurately record his investigation and preserve that interaction for possible trial.37 He continuously re*385ferred to appellant as “the Subject” — the subject of his investigation. He made four separate trips back to his patrol car for the specific purposes of narrating what he had seen, smelled, and heard during his investigatory stop. He offered his opinions and conclusions about what his investigation of appellant had revealed. He narrated his impressions of how appellant had performed on various investigatory field tests and then announced his conclusion: “Subject is going to be placed under arrest for DWI.” The entire tape-recorded narrative is, as the court of appeals concluded, a speaking offense report.38

Throughout this incident, Trooper Martinez was professionally and politely “engaged in the competitive enterprise of ferreting out crime.”39 One applauds him for that worthy endeavor, but the adversarial nature of this on-the-scene investigation of a potential crime is entirely at odds with the unreflective, instinctive comments of a “street-corner” speaker who was not thinking about the legal consequences of his statements.

The State argues that “[hjearsay may be admissible under one hearsay exception even if it is inadmissible under another hearsay exception.”40 That is correct, just as Justice Yates concluded in her concurring opinion in this case.41 Here, however, the rationale for excluding Trooper Martinez’s recorded oral narrative of his on-the-scene investigation as a present sense impression under Rule 803(1) is precisely the same as the rationale for excluding that evidence under Rule 803(8)(B): the presumed unreliability of law enforcement observations in an adversarial, investigative setting. Thus, Rule 803(1) cannot be used “as a ‘back door’ to admit evidence explicitly inadmissible under Rule 803(8)(B).” 42

The State relies upon several out-of-state cases for the proposition that law enforcement narrative observations may be admissible under the present sense impression exception to the hearsay rule.

In one case, Utah v. Blubaugh,43 the appellate court held that a video recording of the murder defendant’s “messy home” was irrelevant and inadmissible, but harmless error, while the officer’s audio description of that “messy home” was not objected-to at trial. In dicta, the reviewing court suggested that it was admissible as a present sense impression.44 These might appear to be contradictory holdings, but the Utah court did not elaborate on its reasoning in the one-paragraph discussion. Nor does it appear that the aural recording was anything more than a description of the defendant’s home. In any event, we agree with the Houston Court of Appeals that the issue of the admissibility of a recording of the factual observations of a law enforcement agent made during an adversarial investigation was not raised in that case.45

*386The State also cites United States v. Rideout,46 a vacated and unpublished opinion from the Fourth Circuit in which the appellate court noted that the defendant’s “blanket objection” to the audio portion of a videotaped recording showing a drug-infested neighborhood (described as “an open air crack market”) did not preserve any error in its admission.47 But the officer in Rideout was not focused upon the investigation of any particular person. Apparently, the videotape was simply a visual and audio recording of the appearance of a neighborhood, much like a TV newscast showing and describing the destruction of a hurricane. As with Blu-baugh, we conclude that the question of whether a police office’s narrative descriptions of his factual observations in an adversarial investigation was neither present nor raised in Rideout.

The State relies upon Ohio v. Penland,48 a case that appropriately concluded that a radioed recording by an officer in hot pursuit of a fleeing suspect was admissible as a present sense impression.49 The court stated that the officer

while pursuing the appellant, transmitted over his radio a description of the appellant, the appellant’s possession and disposal of the gun, and his apprehension. Each of the taped statements from that radio transmission described an event or condition perceived by the officer, either as he perceived it or immediately thereafter. The circumstances surrounding the officer’s transmission of the statements, especially the perilous nature of the officer’s pursuit of the appellant, supply sufficient indicia of the statements’ trustworthiness.50

This scenario — the description of a chase while it is occurring, transmitted to his dispatcher — is precisely the sort of unre-flective, uncalculated, non-testimonial “street corner” statement that is admissible under Rule 803(1), even when made by a law enforcement officer.51 Trooper Martinez, unlike the pursuing officer in Pen-land, calmly walked back and forth from his patrol car to the suspect, and he carefully and deliberately narrated the results of his DWI field tests and investigation. Trooper Martinez’s recorded statements are “testimonial” and reflective in nature; they are the type of statements that are made for evidentiary use in a future criminal proceeding.52

In sum, most of the statements made by Trooper Martinez on the videotape constituted a calculated narrative in an adversarial, investigative setting.53 These particular statements may be entirely reliable ones, but the setting is one that human experience and the law recognizes is brimming with the potential for exaggeration or misstatement.

*387We therefore agree with the court of appeals which had held that Trooper Martinez’s recorded investigation narrative did not qualify for admission as a present sense impression under Rule 803(1). At trial, Trooper Martinez may testify to exactly what he saw and heard during his investigative detention of appellant, and his words might be the very same as those he used during his on-the-scene narrative, but they must be given under oath and subject to cross-examination.

We affirm the judgment of the court of appeals.