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Click here for the full text of this decision FACTS:On May 29, 2004, Texas Highway Patrol Trooper Abel Martinez was on patrol when he observed Fischer driving without his seatbelt. After Fischer parked his pickup truck in the parking lot of his apartment complex, Martinez approached Fischer. A videotape mounted in Martinez’s patrol car recorded the stop. After informing Fischer that he had been stopped for not wearing a seatbelt, Trooper Martinez stated he smelled alcohol and asked Fischer whether he had any alcohol in the car; Fischer responded that he did not. When Martinez asked Fischer what he had been drinking, Fischer replied “three wines.” Martinez then instructed Fischer not to move and Martinez returned to his patrol car. Martinez next verbally recorded that Fischer had “glassy, bloodshot eyes” and “slurred speech” and that he smelled “the strong odor of alcoholic beverage.” As Martinez administered a horizontal gaze nystagmus test and other tests to determine intoxication, he returned to his patrol car to make additional recordings of Fischer’s condition. Eventually, Martinez arrested Fischer for driving while intoxicated. On May 4, 2005, Fischer filed a Motion to Suppress DWI Video in which he challenged the proposed evidentiary use of the audio portion of the videotape, claiming that the audio contains “a highly prejudicial and inflammatory narrative of what [Martinez] would have the viewer to believe [he] was observing and/or what was taking place.” According to Fischer, “These self-serving statements are hearsay, bolstering, and highly prejudicial.” Following a hearing, the trial court denied Fischer’s motion on the grounds that Martinez’s narrative qualified as a present sense impression exception to the hearsay rule. Fischer subsequently entered into a plea agreement and pleaded nolo contendere. In accordance with the plea agreement, the trial court assessed punishment at 180 days’ confinement, probated for one year, and a fine of $300. On appeal, Fischer contended the trial court reversibly erred in admitting the officer’s recorded commentary as a present sense impression because the evidence should have been excluded under Texas Rule of Evidence 803(8)(B) as the functional equivalent of an offense report. HOLDING:Reversed and remanded. The court concluded that narratives as well as opinions and calculated statements are not admissible as present sense impressions. The court held that Martinez’s recorded commentary did not qualify as a present sense impression. The court agreed with Fischer that Martinez’s narrative is the functional equivalent of a police report or offense report offered for the truth of the matter asserted. Under these circumstances, admitting this report simply because it was dictated contemporaneously with or immediately after making the observations it contains would be “inconsistent with the intended effect” of Rule 803(8)(B), the court stated. Because the recorded narrative did not qualify for admission as a present sense impression and must be excluded as the report of a law enforcement officer’s observations made and recorded pursuant to a duty imposed by law, the court held that the trial court erred in denying Fischer’s motion to suppress. The court then conducted harm analysis. Fischer’s counsel, the court noted, stated on the record that if the motion to suppress had been granted, Fischer would not have entered a plea of nolo contendere but would have tried the case. Because the right to a jury trial in a criminal prosecution is guaranteed by the federal and Texas constitutions, the erroneous admission of Martinez’s recorded narrative affected Fischer’s substantial rights, the court stated. OPINION:Guzman, J.; Hedges, C.J., and Guzman, J. CONCURRENCE:Yates, J. “[T]he majority implies that Rule 803(8)(B) excludes the admission of all law enforcement reports, regardless of whether they fall within some other recognized hearsay exception. It is with this conclusion that I disagree.”

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