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Criminal Law No. 14-02-00660-CR, 4/17/2003. Click here for the full text of this decision FACTS: The appellant, Freddrick Smith, appeals a conviction for felony driving while intoxicated. He entered a plea of not guilty to the indictment, but pleaded true to the two jurisdictional paragraphs alleging prior sequential convictions for felony driving while intoxicated. The trial court assessed punishment at 35 years in the Institutional Division of the Texas Department of Criminal Justice. The appellant contends the trial court erred in admitting the audio portion of the DWI videotape. HOLDING: Affirmed. The appellant contends the admission of his statement that he had been to prison improperly admitted evidence of prior convictions used for jurisdictional purposes. The appellant stipulated to the two prior DWI convictions alleged as jurisdictional enhancements in the indictment. When a defendant stipulates to the prior DWI convictions, the state, at the beginning of trial, may read the indictment to the jury, including allegations of those two convictions, but the state is precluded from proving the convictions during its case-in-chief. Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000). Because the appellant stipulated to those convictions, the state was permitted to read the indictment to the jury at the beginning of the trial, but was prohibited from proving the convictions during its case in chief. The appellant contends that by admitting his statement that he had been to prison, the state violated the rule set out in Tamez. To the contrary, in this case, the state adhered to the rule in Tamezby only reading the indictment at the beginning of trial. During trial, the state did not attempt to prove the appellant’s prior convictions. The appellant fails to show that his statement, “I’ve been to prison before,” is evidence regarding the jurisdictional enhancements. The appellant presented no evidence to show that the prison sentence mentioned in the video referred to the two prior DWI convictions used as jurisdictional enhancements. The appellant further contends the prejudicial effect of his statements in the videotape outweigh the probative value of the evidence. Texas Rule of Evidence 403. Rule 403 favors admissibility of relevant evidence and the presumption is that relevant evidence will be more probative than prejudicial. Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990). The burden is on the opponent of the proffered evidence to demonstrate the negative attributes of the evidence and to show how these negative attributes substantially outweigh the probative value of the evidence. Further, an appellate court reviewing the trial court’s decision to admit certain evidence may reverse it only for an abuse of discretion, i. e., only when it is outside the zone of reasonable disagreement. Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). The audio portion of the DWI videotape was relevant to the contested issue of whether appellant was intoxicated. Because the definition of “intoxicated” includes “not having the normal use of mental or physical faculties,” any sign of impairment in the appellant’s ability to speak is circumstantially relevant to whether he was legally intoxicated while driving. Griffith v. State, 55 S.W.3d 598 (Tex. Crim. App. 2001). Thus, evidence of appellant’s speech, including his tone of voice and words were relevant to whether appellant had lost the normal use of his mental or physical faculties because it showed appellant’s condition and behavior at the time of the offense. The appellant has failed to overcome the presumption that this relevant evidence is more probative than prejudicial. Accordingly, the trial court did not abuse its discretion in admitting the audio portion of the DWI videotape. During the DWI videotape, the appellant made the following statements, “I don’t want to cooperate. I don’t want to stand on the line. I don’t want to do nothing. I don’t have to cooperate. I know how it goes.” The appellant contends that by making those statements, he clearly invoked his right to silence. At the time the appellant made those statements, however, he was not subject to custodial interrogation. Police questioning incident to a videotaped sobriety test is activity normally attendant to arrest and custody, not interrogation under Miranda. The record reflects that the officer did not attempt to interrogate the appellant, but asked him to stand on a line while the officer read something to him. The appellant’s repeated statements that he was not going to cooperate were not the subject of custodial interrogation; therefore, they were admissible. OPINION: Yates, J.; Yates, Hudson and Frost, JJ.

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