Daniel Layton v. State ( 2007 )

Opinion issued February 15, 2007

In The

Court of Appeals

For The

First District of Texas

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NO. 01-05-00950-CR

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DANIEL LAYTON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1266371

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O P I N I O N

A jury convicted appellant, Daniel Layton, of the misdemeanor offense of driving while intoxicated (DWI), and the trial court assessed punishment at 180 days in the Harris County jail, probated for one year, and a $300 fine. We determine whether the trial court abused its discretion in admitting into evidence videotaped statements made by appellant at the scene. We affirm.

BACKGROUND

At 4:00 a.m. on October 27, 2004, Houston Police Officer C. Allen stopped appellant's car for a traffic violation. Allen testified that he noticed the smell of alcohol on appellant's breath. The traffic stop and subsequent events leading up to appellant's arrest were recorded on Allen's video camera. At trial, the videotape was admitted into evidence as State's Exhibit 1.

Allen asked appellant if he had been drinking alcohol. Appellant responded that during the course of the night he had had about five or six drinks--his first drink at 6:00 p.m. and his last drink at 12:00 midnight. Appellant also stated that he had a "buzz," but was not intoxicated. Allen asked appellant if he was on any medications, and appellant told Allen that he was taking Valium and Xanax. Appellant said he had not taken Xanax on the previous day, but had taken Valium at 2:00 p.m. Appellant explained that his doctor had prescribed the medications for high blood pressure. Allen responded that it was probably not a good idea to be drinking "on top of those." He also stated that the medications were not for high blood pressure, but were for anxiety and asked appellant if he had read the inserts included with the medication.

Allen then conducted a series of field sobriety tests: the horizontal-gaze-nystagmus (H.G.N.) test, the one-leg-stand test, the walk-and-turn test, and a modified ABC test. Based on his conversation with appellant and appellant's performance on the tests, Allen concluded that appellant was intoxicated and arrested him for DWI. At the police station, when asked to give a breath sample, appellant said that he wanted to talk to his lawyer first. Appellant did not give a breath sample.

Appellant filed a motion to suppress portions of the videotape of the traffic stop and arrest on the ground that the portion of the videotape in which appellant stated that he took Valium and Xanax was irrelevant. The trial court denied the motion. Before the videotape was admitted into evidence and played for the jury, appellant again objected that the portions of the videotape mentioning Valium and Xanax were irrelevant. The trial court overruled the objection, reasoning that an inquiry about medications is a predicate to administering the H.G.N. test. Appellant argued that the inquiry might be relevant, but the answer was not. The objection was again overruled.

DISCUSSION

In his sole issue for review, appellant contends that the trial court erred in admitting into evidence statements made at the scene regarding appellant's use of Xanax and Valium without requiring the State to show relevance through reliable and competent scientific evidence. Appellant argues that (1) the statements did not make any fact of consequence more or less probable and were therefore irrelevant as to the issue of intoxication and (2) in the alternative, even if relevant, the probative value of the statements was substantially outweighed by the unfair prejudicial effect.

Standard of Review

Generally, all relevant evidence is admissible. Tex. R. Evid. 402. Relevant evidence is that which has a tendency to make the existence of a fact of consequence more or less probable. Tex. R. Evid. 401. We review a trial court's ruling on a motion to suppress evidence for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). An appellate court will reverse a trial court's decision to admit evidence only upon a clear abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990). A trial court abuses its discretion when its decision was arbitrary, unreasonable, or outside of the zone of reasonable disagreement. Id.

Admissibility of the Statements

Appellant argues that the statements made regarding the medication were irrelevant because they had no tendency to make the fact of intoxication more or less probable. See Tex. R. Evid. 401, 402. Appellant further argues that, to show relevance, the State was required to show by reliable and competent scientific evidence involving extrapolation that appellant was under the influence of the medications while driving.

It is clear that the State did not introduce appellant's statements regarding his use of Xanax and Valium to establish that appellant was under the influence of those drugs while driving because the State did not make any reference to appellant's use of these medications during the trial testimony or the State's closing argument. Appellant's statement that he took those medications was in response to a question by Allen. In denying appellant's motion and objection, the trial court explained that Allen's question was relevant as a predicate inquiry to the administration of the H.G.N. test.

Appellant also argues on appeal that, if relevant, the unfair prejudice of the portions of the videotape outweighed their probative value. See Tex. R. Evid. 403. ⁽¹⁾ Appellant contends that under a Reese v. State analysis, the evidence fails the rule 403 balancing test. See 33 S.W.3d 238 (Tex. Crim. App. 2000). The court in Reese set out the following factors to be considered in determining whether prejudicial effect of evidence outweighs its probative value: (1) the degree to which the evidence is probative, (2) the potential of the evidence to impress a jury in an irrational but indelible way, (3) the time the proponent needs to develop the evidence, and (4) the proponent's need for the evidence. The Reese analysis does not apply in this case because the State did not argue that this evidence was probative of the fact of appellant's intoxication at the time of the stop. Id. at 240-41.

In addition, because this evidence was not used as proof of intoxication, but was merely a result of predicate questions before administering the H.N.G. test, a "gatekeeper" hearing was not required. See, e.g., DeLarue v. State, 102 S.W.3d 388, 401 (Tex. App.--Houston [14th Dist.] 2003, pet. ref'd) (determining that trial court erred in admitting, without Daubert-Kelly hearing, evidence of marijuana in bloodstream to show effect on intoxication).

We conclude that the trial court did not abuse its discretion in admitting the portion of the videotape that contained appellant's statements regarding Xanax and Valium.

Appellant also contends that it was error for "the jury to hear portions of the scene video that included . . . Allen's unsubstantiated opinions about the medications." At trial, appellant did not make a specific objection to Allen's statements regarding the use and effect of Xanax and Valium. Therefore, we have nothing to review. See Tex. R. App. P. 33.1(a).   

CONCLUSION

We overrule appellant's sole issue and affirm the judgment.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

Justice Jennings, dissenting.

Publish. Tex. R. App. P. 47.2(b).

1. At trial, appellant referred to "a 403 analysis" and then objected that the videotape was not relevant. Appellant did not object that the probative value of the evidence was substantially outweighed by unfair prejudice. See Tex. R. Evid. 402, 403. Although, in our view, appellant's passing reference to rule 403 while making a rule 402 objection does not preserve a rule 403 objection, we nevertheless address appellant's issue because it is closely tied to his extrapolation argument.