In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-05-252 CR
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BRANDY MARLENE DALTON, Appellant
V.
THE STATE OF TEXAS, Appellee
Hardin County, Texas
Trial Cause No. 50125
This appeal concerns whether the trial court committed reversible error when it admitted two written statements over Brandy Marlene Dalton's hearsay objections. We find that it did not and affirm the trial court's decision.
Background
Dalton, while driving her car southbound on Highway 69 in Hardin County, Texas, left the paved portion of the highway and entered the nearby ditch. Dalton was unable to remove her car from the mud in the ditch by spinning her tires or by getting out of the car and pushing it. Two witnesses, Donna Allen and Heather Moore, observed Dalton driving erratically before the incident and watched in their rearview mirrors as Dalton's car left the road. Both witnesses turned around and stopped at the scene. Moore approached the car and spoke to Dalton.
Shortly after the accident, Arnold Tevis, a State Trooper with the Texas Department of Public Safety, arrived at the scene. After conducting field sobriety tests, Trooper Tevis placed Dalton under arrest. Trooper Tevis subsequently obtained a blood specimen. During his investigation, Trooper Tevis obtained written witness statements from Allen and Moore. The State charged Dalton with driving a vehicle in a public place while intoxicated by not having the normal use of her mental or physical faculties by reason of the introduction of some unknown substance other than alcohol in the body. The State, in a jury trial, tried the case on the offense of driving while intoxicated. Following the trial, the jury found Dalton guilty. The court fined Dalton $1,000, and sentenced her to 180 days confinement in county jail. (1)
During Allen's and Moore's respective direct examinations, the State requested that their written statements be admitted into evidence. The trial court, over the objection of Dalton's attorney, admitted both statements into evidence. The statements were not used during the State's examination of Allen or Moore to refresh the respective witness's recollection or to impeach prior testimony. During Allen's examination, she testified to the information contained in her statement. Moore's testimony, in part, duplicated the information in her statement, however the statement also included two observations, to which she did not testify. On appeal, Dalton asserts the trial court impermissibly admitted the statements and that their admission resulted in harm. The State, on the other hand, claims that the statements are not hearsay, or in the alternative, fell within an exception to the hearsay rule.
Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). We will uphold the trial court's ruling if it is "reasonably supported by the record and is correct under any theory of law applicable to the case." Id.
The Two Witness Statements and Their Admissibility
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial . . . , offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). Absent a specific exception, hearsay is not admissible. Tex. R. Evid. 802.
The two witness statements at issue are hearsay. Both written statements were made outside of court and neither were made under oath. The State suggests that its purpose in offering the written statements was to identify Dalton. However, Dalton's identity was not contested and was not an issue, and we disagree that the written witness statements were offered by the State for the purpose of identifying Dalton as the State suggests. See Tex. R. Evid. 801(e)(1)(C). Moreover, contrary to the State's contention that the written statements were not offered for the truth of the matter asserted-that Dalton was driving while intoxicated-we find no other basis for the State's proffer of the written statements except to show that Dalton was intoxicated. See Tex. R. Evid. 801(c). Because the written statements were offered to prove Dalton's intoxication, absent a permissible exception to the hearsay rule, the written statements were inadmissible. See Tex. R. Evid. 802.
The State argues alternatively that if the written statements are hearsay, their admission was permissible as "present sense impressions," an exception to the hearsay rule. See Tex. R. Evid. 803(1). The Rules of Evidence define a present sense impression as "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Id. Present sense impressions are not excluded under the hearsay rule. Id.
Present sense impressions are not excluded because there are circumstantial guarantees that the out-of-court statement is likely true. See generally 2 Steven Goode et al., Guide to the Texas Rules of Evidence § 803.2 (3d ed. 2002). Specifically, present sense impressions possess the following safeguards of reliability:
1) the report at the moment of the thing then seen, heard, etc. is safe from any error from defect of memory of the declarant;
2) there is little or no time for a calculated misstatement;
3) the statement will usually be made to another-the witness who reports it-who would have equal opportunity to observe and hence to check a misstatement.
1.70 Acres v. State, 935 S.W.2d 480, 488 (Tex. App.-Beaumont 1996, no writ); see also Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926, 113 S. Ct. 3047, 125 L. Ed. 2d 731 (1993). "The rationale for the exception stems from the statement's contemporaneity, not its spontaneity[.]" 1.70 Acres, 935 S.W.2d at 488.
In this case the witnesses did not make their written statements while perceiving the incident. Therefore, the issue is whether the lapse in time between the witnesses perceiving the event and the time each witness made her statement is sufficiently proximate to be considered made "immediately thereafter." See Tex. R. Evid. 803(1).
The State, as the proponent of the evidence, bears the burden of establishing that the witness statements were made immediately after the witnesses perceived the event to qualify for the hearsay exception. See Martinez v. State, 178 S.W.3d 806, 815 (Tex. Crim. App. 2005). The record places the accident at approximately 11:30 a.m. Allen testified that she wrote her statement between 10:45 and 11:00. Moore prepared her statement five days after the incident. While no per se rule exists for determining whether too much time has passed, we must decide "whether the proximity in time is sufficient to reduce the hearsay dangers of faulty memory and insincerity." Beauchamp v. State, 870 S.W.2d 649, 653 (Tex. App.-El Paso 1994, writ ref'd).
While we think it likely that Allen prepared her statement shortly after the incident and not before its occurrence, the evidence in the record does not establish how much time elapsed between when she observed the incident and when she prepared her statement. As it is the State's burden to show that a hearsay exception applies, and the record is insufficient to do so, we cannot conclude that the present sense impression exception applies to Allen's written statement.
Moore's written statement, made five days after the incident, clearly falls outside any reasonable argument that she made it immediately after the incident. A statement made five days after an incident does not have the circumstantial guarantees that otherwise make the truthfulness of out-of-court statements admitted as present sense impressions reliable. Thus, we find that the State failed to establish that the witnesses' written statements were made immediately after the witnesses' perception of the event. Consequently, the written statements do not qualify as "present sense impressions." See Tex. R. Evid. 803(1). The trial court erred when it admitted the two written statements over Dalton's hearsay objections.
Harm Analysis
Having found the trial court erred in admitting the written statements, we must conduct a harm analysis to determine whether the error requires reversal of the judgment. See Tex. R. App. P. 44.2. If the error is constitutional, as Dalton suggests, we apply rule 44.2(a) and reverse unless we determine "beyond a reasonable doubt that the error did not contribute to the conviction or punishment." Tex. R. App. P. 44.2(a). Otherwise, we apply rule 44.2(b) and disregard the error unless it affects substantial rights. Tex. R. App. P. 44.2(b).
Rarely does an erroneous evidentiary ruling rise to the level of constitutional error. Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002). This rule generally applies when a trial court erroneously admits evidence. See, e.g., Bagheri v. State, 119 S.W.3d 755, 762-63 (Tex. Crim. App. 2003) (nonconstitutional error when trial court erroneously admitted "retrograde extrapolation" evidence); Hankins v. State, 180 S.W.3d 177, 182 (Tex. App.-Austin 2005, pet. ref'd) (erroneous admission of prior conviction analyzed under nonconstitutional harm analysis); Stovall v. State, 140 S.W.3d 712, 718 (Tex. App.-Tyler 2004, no pet.) ("A violation of the evidentiary rules that results in the erroneous admission of evidence is nonconstitutional error."). The two witnesses who gave their written statements appeared at trial and were subject to cross-examination. Thus, the erroneous admission of their written statements did not violate Dalton's right to confront the witnesses who testified against her. Dalton does not explain how any of her constitutional rights were denied by the erroneous admission of the written statements. Therefore, we conclude that the trial court's erroneous admission of the two written witness statements does not rise to the level of constitutional error.
We next consider whether the erroneous admission of the written witness statements affected Dalton's substantial rights. See Tex. R. App. P. 44.2(b). Dalton's substantial rights are affected if the admission of the written statements exerted "a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)). Conversely, the error is harmless if, after considering the record as a whole, we have "'fair assurance that the error did not influence the jury, or had but a slight effect.'" Bagheri, 119 S.W.3d at 763 (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). In assessing whether the error adversely affected the jury's decision, we consider the entire record, including all testimony, physical evidence, jury instructions, the State's theories, any defensive theories, closing arguments, and even voir dire, if applicable. Bagheri, 119 S.W.3d at 763; Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Important factors we consider are "'the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case.'" Bagheri, 119 S.W.3d at 763 (citing Motilla, 78 S.W.3d at 355). We also consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert. Bagheri, 119 S.W.3d at 763.
Allen's testimony at trial, under oath, reiterates the information in her written statement. As a result, we conclude that the erroneous admission of her statement did not influence the jury or cause Dalton harm.
Moore's statement included her observations that Dalton "looked drunk" and that she saw Dalton "walking around as if she did not know where she was." Moore did not testify to these two observations at trial. However, there is other substantial evidence, admitted without objection at trial, to support Dalton's conviction for driving while intoxicated.
Allen and Moore both testified at trial that they saw Dalton weaving across the roadway prior to her leaving the highway. Additionally, Trooper Tevis testified regarding his observations of Dalton upon his arrival at the scene and that she failed to pass the field sobriety tests he conducted. Additionally, the field sobriety tests were videotaped and shown to the jury. The videotape also supports the jury's conclusion that Dalton did not have the normal use of her mental or physical faculties. Finally, two toxicologists with the Texas Department of Public Safety Crime Lab testified that the levels of prescription drugs found in Dalton's blood, although within the recommended therapeutic ranges, could cause impairment.
During closing argument, the State did emphasize the statements and recommended that the jury review the written statements. The State's attorney also read the portion of Moore's statement regarding her observation that Dalton appeared intoxicated. After retiring, the jury requested and was given the opportunity to review the written statements at issue. Moore's two observations are cumulative of other evidence that strongly supports the contention that Dalton was intoxicated when she was driving. Having thoroughly examined the entire record in this case, we can say with fair assurance that the erroneous admission of the two written witness statements did not influence the jury, or had but a slight effect. Therefore, we affirm the judgment of the trial court.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on September 5, 2006
Opinion Delivered October 25, 2006
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
1. Pursuant to a request by Dalton and agreement by all parties, including the trial
court, the court probated Dalton's jail sentence for one year.