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Click here for the full text of this decision FACTS:At about 1:40 a.m. on May 29, 2004, Trooper Martinez turned on his dashboard-mounted video camera and announced, on tape, that he was pulling over a driver lacking a seatbelt. After the driver parked his truck in his apartment complex parking lot, Martinez approached John Robert Fischer and began questioning him. All of that questioning was recorded through Martinez’s body microphone and captured on camera. Martinez asked for Fischer’s driver’s license and insurance; Fischer responded that he had just moved. The trooper then asked Fischer whether he had “any alcohol in the car,” and quickly added, “I smell alcohol.” Martinez then asked Fischer, “How much alcohol have you had this evening?” Fischer replied, “Three wines.” Martinez told Fischer to stay where he was, and the trooper walked back to his patrol car and dictated into his microphone that Fischer had “glassy, bloodshot eyes” and “slurred speech.” Martinez stated that he had smelled “the strong odor of alcoholic beverage.” Martinez then walked back to Fischer and asked him if there was any reason why he was not wearing a seatbelt. Fischer said that he was depressed over his recent divorce. Martinez asked Fischer if he had any weapons or drugs. Fischer said no, but Martinez opened the driver’s door of Fischer’s truck and got inside to make a cursory search. Finding nothing, Martinez got back out and administered a horizontal gaze nystagmus (HGN) test to Fischer. After the HGN test was completed, Martinez again left Fischer, returned to his patrol car and recorded the following observations: “Subject has equal pupil size, equal tracking, has a lack of smooth pursuit in both eyes, and has distinct nystagmus at maximum deviation in both eyes. Subject also has onset of nystagmus prior to forty-five degrees in both eyes.” Martinez also dictated into his microphone: that he had seen a “wine opener” in Fischer’s truck; that there was a strong odor of alcohol on Fischer’s breath; and that Fischer had glassy, bloodshot eyes and “slurred speech.” The trooper then told Fischer to stand in front of the patrol car and asked him to perform field sobriety tests. After Fischer performed the heel-to-toe test, Martinez again went back to his car to record his observations of the test. He did the same for a “one-leg stand” test. Martinez then dictated: “Subject is going to be placed under arrest for DWI.” The videotape then shows Martinez returning to Fischer, saying, “I believe you are drunk,” and arresting him. After authorities charged Fischer with DWI, he filed a motion to suppress the audio portion of the patrol-car videotape, claiming that it contained Martinez’s “bolstering, self-serving statements about what he was allegedly doing and seeing.” Fischer called it “a highly prejudicial and inflammatory narrative.” The trial judge denied Fischer’s motion and concluded that the audio narrative was admissible as a “present sense impression.” Fischer then pleaded nolo contendere and appealed the trial court’s ruling on his motion to suppress Martinez’s orally recorded factual observations during his DWI investigation. The 14th Court of Appeals concluded that the trial court had erred. It held that Martinez’s recorded commentary did not qualify as a present-sense impression. Rather, the 14th Court deemed his comments a “calculated narrative statement” and “the functional equivalent of a police offense report[.]“ The CCA granted the state’s petition for review. HOLDING:Affirmed. The hearsay doctrine, codified in Texas Rules of Evidence 801 and 802, is designed to exclude out-of-court statements offered for the truth of the matter asserted that pose any of the four “hearsay dangers” of faulty perception, faulty memory, accidental miscommunciation or insincerity. The numerous exceptions to the hearsay rule set out in Rules 803 and 804(8), the CCA stated, are based upon the rationale that some hearsay statements contain such strong independent, circumstantial guarantees of trustworthiness that the risk of the four hearsay dangers is minimal while the probative value of such evidence is high. Under Rule 803(1), the CCA stated, the present sense impression is defined as a statement “describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” The rationale for the “present-sense impression” exception, the CCA stated, is that the contemporaneous nature of the statement in light of the event that it describes “eliminates all danger of faulty memory and virtually all danger of insincerity.” The exception, the CCA stated, is predicated on the notion that “the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes.” It is “instinctive, rather than deliberate.” If the declarant has had time to reflect upon the event and the conditions he observed, this lack of contemporaneity diminishes the reliability of the statements and renders them inadmissible under the rule. The present-sense impression, the CCA stated, does not include “reflective narratives, calculated statements, deliberate opinions, conclusions, or conscious”thinking-it-through’ statements.” Martinez, the CCA noted, calmly walked back and forth from his patrol car to the suspect and carefully and deliberately narrated the results of his DWI field tests and investigation. Martinez’s recorded statements, the CCA stated, are “testimonial” and reflective in nature; they were the type of statements that are made for evidentiary use in a future criminal proceeding. In sum, the CCA found that most of the statements made by Martinez on the videotape constituted a calculated narrative in an adversarial, investigative setting. “These particular statements,” the CCA stated, “may be entirely reliable ones, but the setting is one that human experience and the law recognizes is brimming with the potential for exaggeration or misstatement.” The CCA therefore agreed with the 14th Court in holding that Martinez’s recorded investigation narrative did not qualify for admission as a present sense impression under Rule 803(1). At trial, the CCA held that Martinez could testify to exactly what he saw and heard during his investigative detention of Fischer, but his testimony must be given under oath and subject to cross-examination. OPINION:Cochran, J., delivered the opinion of the court in which Price, Womack, Johnson and Holcomb, JJ., joined. DISSENT:Hervey, J., filed a dissenting opinion in which Keller, P.J., Meyers and Keasler, JJ., joined. “Martinez’s out-of-court factual assertions satisfy the contemporaneity requirement because they describe or explain events, which Martinez (the declarant) was observing at the time that he made the out-of-court statements or immediately thereafter.”

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