dissenting.
A jury convicted appellant, Kelton Howard Opp, of misdemeanor driving while intoxicated. The trial court assessed punishment at 90 days in jail and a $350 fine. In a single point of error, appellant complains that the trial court allowed the introduction of a videotape showing appellant invoking his rights to counsel and remain silent numerous times.
We have the videotape before us for review, and it does have numerous invocations of rights to counsel and remain silent. The record reflects, however, that the trial court originally ruled that the volume would be turned down after .the first invocation of the right to counsel. The record does not reflect at what point the volume was actually turned down. From the prosecutor’s argument, it appears that only the audio of appellant’s refusal to take the field sobriety tests was played for the jury. The prosecutor makes no mention of appellant invoking his right to counsel on the videotape.
The bottom line, as the State argues on appeal, is that we do not know at which point the trial court turned down the volume, whether it was before any invocation of a right to counsel, after the first such invocation, or after numerous invocations of appellant’s rights. Under these circumstances, we cannot address the merits of appellant’s point of error. Obviously, if the trial court turned down the volume before any invocations of appellant’s rights were played before the jury, no error is present.
In the absence of a record showing us at what point the volume was turned down, I would hold that we cannot review appellant’s sole point of error. Accordingly, I would overrule appellant’s point of error, and affirm the judgment of the trial court.