Michael Wayne Thompson v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00519-CR

Michael Wayne Thompson, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
NO. 2C11-04500, HONORABLE JOHN MICHAEL MISCHTIAN, JUDGE PRESIDING

M E M O R A N D U M O P I N I ON

Michael Wayne Thompson was arrested for the offense of driving while intoxicated.

See Tex. Penal Code Ann. § 49.04 (West Supp. 2012). Using his dashboard camera, the arresting

officer videotaped his pursuit of Thompson’s vehicle and the subsequent traffic stop, during which

he administered field sobriety tests to Thompson. Thompson moved to exclude several portions of

the video. The trial court granted Thompson’s motion as to some portions and denied it as to others.

On appeal, Thompson contends the trial court committed reversible error by admitting one portion

of the video he had objected to. We will affirm.

BACKGROUND

On the evening of May 23, 2011, Trooper Steven Royal was on patrol on Interstate

Highway 35 in Bell County. While patrolling, Royal observed Thompson driving a green Mustang

convertible at a speed of over 111 miles per hour on the highway. Royal testified that he activated
his in-car video recorder and pursued Thompson. Royal said he did not immediately activate his

lights or siren because he had not yet identified the make of the vehicle and he did not want to give

the driver an opportunity to blend in with the other traffic. After a mile or two, Royal activated his

lights when Thompson’s vehicle moved to the outside lane and continued at up to 115 miles per

hour. According to Royal, Thompson exited the highway, at which time Royal activated his siren

and exited behind Thompson. Royal testified that although there were places to pull over, Thompson

proceeded along the frontage road at 90 to 100 miles per hour. Royal described the frontage road

as a two-lane two-way road on which Thompson was traveling northbound, making no effort to slow

down. Royal testified that Thompson ran three stop signs without braking and passed a vehicle

pulling a trailer in a no passing zone. After Thompson passed the vehicle, Royal was able to get

close enough to Thompson’s vehicle to read its license plate and identify it as a green Mustang

convertible. Royal stated that after he activated his lights and siren, Thompson traveled two more

miles along the frontage road before finally turning onto a side street and coming to a stop.

Royal testified that he had pursued Thompson for approximately four miles at speeds

of more than 100 miles per hour, with his lights and siren activated for two of those miles, before

Thompson pulled over. Royal stopped behind Thompson’s vehicle and conducted a “felony stop,”

which differs from a regular stop; rather than approach the vehicle and talk to the driver, the officer

has his weapon drawn and gives the driver instructions loudly from a distance. Royal described how

he instructed Thompson to get out of the Mustang and secured him with handcuffs. Royal testified

that he gave Thompson Miranda warnings and conducted three field sobriety tests. Royal testified

that Thompson exhibited several signs of intoxication and smelled of alcohol. Royal arrested

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Thompson and took him to the Bell County Jail. Thompson was charged with the offense of driving

while intoxicated.

Before trial, Thompson moved to exclude several portions of Royal’s dashboard

video recording of the pursuit and sobriety tests. The trial court granted the motion with respect to

numerous segments of the video, but denied several. At trial, the prosecution played the portions

of the video permitted by the trial court, during which Royal was on the stand describing what was

happening in the video. After the close of evidence, the jury returned a guilty verdict. Thompson

elected to have the jury set punishment, which it assessed at 180 days in jail and a $2,000 fine.

Thompson perfected this appeal. In a single issue, Thompson complains that the trial court erred in

denying his motion to exclude the first five and a half minutes of the video, which depict the video

and audio of the officer’s pursuit of Thompson from its initiation until Thompson pulled over. In

his motion, Thompson contends that the officer’s statements in that portion of the video are an

inadmissible “narrative,” making the audio portion inadmissible and, as a consequence, making the

video portion irrelevant. Although he moved to exclude both the audio and video of that portion of

the videotape, the focus of his objection, and the basis for excluding it, was the audio component.

DISCUSSION

In his brief, Thompson states that the specific objection he contends the court

erroneously overruled can be found on page six of the reporter’s record of the hearing on his motion

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to exclude. It is evident from the reporter’s record that this objection was to the first five and a half

minutes of the video,1 which consists of the following:

0:00 Royal’s car parked on shoulder with traffic passing.

01:08 Thompson’s car is observed, and Royal begins pursuit with no audio.

02:05 Audio commences consisting of nonspecific police radio traffic.

03:29 Royal activates his siren as he catches up to Thompson.

03:56 Royal advises the dispatcher that he is in pursuit, gives his location, and tells
the dispatcher that the car he is pursuing looks like a convertible.

04:26 Royal again advises the dispatcher of his location.

04:43 Royal again advises the dispatcher of his location.

05:03 Royal tells the dispatcher the vehicle is a “ragtop” but he cannot see the
license plate.

05:11 Royal gets close enough to read the license plate and provides the dispatcher
with the license plate number and a description of the vehicle.

05:33 Thompson’s vehicle is stopped on the side street, and Royal commences the
“felony stop.”

Thompson’s stated objection to this portion of the video was:

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The reporter’s record reflects that the trial court began watching the video and stopped it
after 5:33 minutes had played in order to address the first of Thompson’s objections set forth in his
motion to exclude. As stated in the reporter’s record, the court made the following statement after
stopping the video at that point: “Okay. That was Section 025:33. And what is your objection to
that section?” While the reporter transcribed the court’s words as “025:33,” it is apparent from the
context that this was a mistranscription of the words he actually spoke, which were undoubtedly
“zero to five thirty-three.” This is consistent with the first of Thompson’s objections to the video,
which was set forth in his motion to exclude as follows: “0:00-5:33 Narrative by the Trooper.”

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 Judge, as it’s stated in the Motion, narrative by the trooper. He’s dictating into the
video machine what’s happening as it’s happening, which is—as Paragraph 6
explains, is not allowed under Fisher [sic] v. State, an Austin case.

The “narrative” that Thompson apparently refers to consists of Royal’s statements to the dispatcher

regarding his location and the description of the vehicle he is pursuing. Royal does not say anything

else during this portion of the video. Relying on Fischer v. State, 207 S.W.3d 846 (Tex.

App.—Houston [14th Dist.] 2006), aff’d, 252 S.W.3d 375 (Tex. Crim App. 2008), Thompson

complains that it was error to permit the jury to hear this narrative. See id. at 859-60 (officer’s

recording of his factual observations of DWI suspect contemporaneously dictated on his patrol-car

videotape not admissible as it was functional equivalent of inadmissible offense report and did not

constitute unreflective statement falling within present sense impression exception to hearsay rule).

The State counters, first, that Royal’s statements in the video do not rise to the level of the

“narrative” found in Fischer to be the functional equivalent of an offense report and, second, that

the officer’s words are admissible under the present-sense impression exception to the hearsay rule.

The State further argues that, even if it was error to admit that portion of the video, any such error

was harmless. See Tex. R. App. P. 44.2(b).

Although it is not clear that Royal’s remarks regarding his location are hearsay (since

they do not appear to have been offered to prove the truth of the matters asserted), nor that they are

in substance the functional equivalent of an offense report so as to be inadmissible under rule

803(8)(B) of the rules of evidence, we need not decide these questions because we agree that any

error in admitting this portion of the video was harmless.

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 The admission of inadmissible hearsay constitutes non-constitutional error.

Lee v. State, 21 S.W.3d 532, 538 (Tex. App.—Tyler 2000, no pet.) (citing Johnson v. State,

967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). An appellate court must disregard non-constitutional

errors that do not affect substantial rights of the defendant. Tex. R. App. P. 44.2(b); see Lee,

21 S.W.3d at 538. A substantial right is affected when the error has a substantial and detrimental

effect or influence on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

The error is harmful if there is a reasonable likelihood that the evidence, either alone or in context,

moved the jury from a state of nonpersuasion to one of persuasion beyond a reasonable doubt.

Cardenas v. State, 971 S.W.2d 645, 651 (Tex. App.—Dallas 1998, pet. ref’d) (citing Jones v. State,

833 S.W.2d 118, 127 (Tex. Crim. App. 1992)). If the error did not influence or had only a slight

influence on the verdict, the error is harmless because it did not affect substantial rights of the

defendant. Lee, 21 S.W.2d at 539. Further, if the fact to which the hearsay pertains is sufficiently

proved by other competent and unobjected-to evidence, admission of the hearsay is properly deemed

harmless and does not constitute reversible error. Anderson v. State, 717 S.W.2d 622, 627 (Tex.

Crim. App. 1986); see Matz v. State, 21 S.W.3d 911, 912-13 (Tex. App.—Fort Worth 2000, pet.

ref’d) (concluding that any error in admitting videotape must be disregarded because video was

“cumulative” of alleged victim’s properly admitted testimony on same issue).

As set forth above, Royal testified, without objection, in great detail regarding the

events depicted and the statements he made in the objected-to portion of the videotape. There is

nothing material to Thompson’s guilt or innocence contained in this portion of the videotape that

was not included in Royal’s live testimony. Consequently, the admission of that portion of the

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videotape had no affect on Thompson’s substantial rights, and any error in its admission was

harmless and does not constitute reversible error. We overrule Thompson’s sole appellate issue.

CONCLUSION

We affirm the trial court’s judgment.

_____________________________________________

J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: January 30, 2013

Do Not Publish

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