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Click here for the full text of this decision FACTS:After authorities charged Justin Amador with driving while intoxicated, he filed several motions to suppress evidence. One of those motions claimed that authorities seized him without reasonable suspicion and probable cause. The trial court held a hearing on this motion to suppress. Amador called Trooper Alicia Fountain, the arresting officer, and played portions of her patrol-car videotape to challenge his detention. Amador did not have the videotape marked, and he told the trial judge that it was not necessary to have a reporter’s record of the words spoken on the videotape, because “[t]he tape will suffice itself.” Although portions of the tape were played, the videotape was never formally offered into evidence. Fountain’s testimony during the hearing showed that she was “working radar” on I-45 in Montgomery County at 2:30 a.m. on June 3, 2003. She saw Amador speed onto the freeway and followed him to the next exit, where he turned off. She turned on her emergency lights, and Amador pulled over in a parking lot. Besides speeding, the trooper saw no other traffic violation or indications of “bad driving.” Fountain did not, at that time, think she had stopped an intoxicated person. But when she approached Amador and asked for his driver’s license and insurance, “[h]e was extremely slow to respond.” He fumbled through his wallet, passing by his license, and was slow to provide both his license and insurance. When she asked Amador to get out of his car, he was slower than normal in doing so, and “his speech was mumbled, real under his breath and mumbled.” She wrote up a warning ticket for speeding and was ready to deliver it to him when she smelled alcohol on his breath. Fountain stated that she felt she needed to investigate further by performing standardized field sobriety tests. On the basis of Amador’s performance on the tests, Fountain placed him under arrest for DWI. After the trial judge denied Amador’s motion to suppress, Amador pleaded guilty, and the trial court sentenced him to 180 days in jail probated for a year and a fine of $600. Importantly, the videotape never became part of the appellate record, even though the trial judge may have relied on parts of it to deny the motion to suppress. Amador objected successfully to its admission into evidence on grounds that the trial judge had not viewed the entire tape. Later, the 9th Court of Appeals denied the state’s request to supplement the appellate record with the videotape. On appeal, Amador argued that the trial court erred in denying his motion to suppress because: 1. Fountain lacked articulable suspicion to detain him after she decided to give him a warning ticket; and 2. the state failed to show that she had probable cause to arrest Fountain for DWI. On the issue of articulable suspicion, the 9th Court held that the facts that Fountain had before her “justified further investigation” into Amador’s sobriety. Concerning the issue of probable cause, the 9th Court concluded that, because Fountain had “introduced the videotape, suffered the adverse ruling on his motion to suppress, and presented an incomplete record on appeal,” he had failed to ensure that the record on appeal was sufficient to resolve the issue he presented. Therefore, the 9th Court assumed that the videotape supported the trial court’s implicit finding that Fountain had probable cause to arrest Amador for DWI. HOLDING:Vacated and remanded. Amador argued that the 9th Court erred by assuming that Fountain’s videotape recorded Amador’s performance of the field sobriety tests, the trial judge viewed all of that portion of the videotape, and the video depiction of those tests supported Fountain’s opinion that Amador was intoxicated at the time she arrested him. The CCA agreed with Amador. Reviewing courts, the CCA stated, must defer not only to all implicit factual findings that the record will support in favor of a trial court’s ruling but also to the drawing of reasonable inferences from the facts. But reviewing courts, the CCA stated, cannot assume or speculate about the contents of exhibits or other materials that are not contained in the appellate record. The 9th Court, the CCA stated, faced a dilemma: the trial judge obviously viewed portions of the videotape, and Amador relied upon some portions of the tape in the trial court, but Amador objected to supplementation of the record, because the trial court may not have viewed the entire tape. It would be improper to ignore evidence that the trial judge did consider, but it would be equally improper to consider evidence that the trial judge did not consider, the CCA stated. The CCA stated that Rule 34.6(d) and (e) of the Texas Rules of Appellate Procedure solved this dilemma. Rule 34.6, the CCA stated, ensures that the record on appeal accurately reflects all of the evidence that was seen by, used by or considered by the trial judge at the time he made a ruling. If the record as originally designated by the parties does not fully reflect the evidence considered by the factfinder, the CCA stated that the trial judge, the intermediate court of appeals or any of the parties may direct the court reporter to supplement the appellate record with the missing items. Because the 9th Court based its decision, at least in part, upon the contents of an exhibit that was not in the appellate record, the CCA held that it had erred. But because the state properly requested supplementation of the record with that missing exhibit, the CCA vacated the judgment of the 9th Court and remanded the case back to the 9th Court for further proceedings. OPINION:Cochran, J., delivered the opinion of the court, in which Price, Womack, Johnson and Holcomb, J.J., joined. Meyers, J., did not participate. DISSENT:Hervey, J., filed a dissenting opinion, in which Keller, P.J., and Keasler, J., joined. “I respectfully dissent. I would decide that appellant had the burden under Rule 34.6(d) of the Texas Rules of Appellate Procedure to attempt to supplement the appellate record with the portions of the videotape that the trial court considered in denying appellant’s motion to suppress. Having failed to sustain this burden and having also taken affirmative steps to prevent the other party from taking on this burden, appellant should not now be heard to complain that the court of appeals assumed that the videotape supported the trial court’s ruling on an issue that appellant apparently did not even preserve for appeal.”

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