Drewett v. State , 1985 Tex. App. LEXIS 6108 ( 1985 )

OPINION

ROBERTSON, Justice.

The jury rejected appellant’s plea of not guilty to driving while intoxicated and assessed punishment at sixty days confinement in the Harris County jail, probated for two years, and a fine of $300. The issue presented by this appeal concerns the effect of a failure by the police to video tape a person arrested for driving while intoxicated. We affirm.

The state’s evidence of intoxication was, without question, sufficient to sustain a conviction. While both appellant and her husband, who was in the automobile with her at the time of the arrest, denied intoxication, the sufficiency of the evidence is not challenged and a review of the evidence in that regard is unnecessary.

Appellant presents four grounds of error on appeal, the disposition of which is governed by an interpretation of Senate Bill 1, Chapter 303, Section 24, 68th Legislature— Regular Session. (So far as we can determine, this specific provision has not been codified into Vernons Texas Statutes, but is included as a “note” in both TEX.CIV. CODE ANN. art. 67011 -1 (Vernon Supp. 1984) and in the TEX. PENAL CODE ANN. § 19.05 (Vernon Supp.1984). Section 24, in its entirety, provides:

Section 24.

(a) Each county with a population of 25,-000 or more according to the most recent federal census shall purchase and maintain electronic devices capable of visually recording a person arrested within the county for an offense under Article 6701?-1, Revised Statutes, or Subdivision (2), Subsection (a), Section 19.05, Penal Code.

(b) The sheriff of the county shall determine upon approval by the county commissioners court the number of devices necessary to ensure that a peace officer arresting a defendant for an offense listed in Subsection (a) of this section may visually record the defendant’s appearance within a reasonable time after the arrest.

(c) The fact that an arresting officer or person acting on behalf of the state failed to visually record a person arrested for an offense listed in Subsection (a) of this section is admissible at the trial of the offense if the offense occurred in a county required to purchase and maintain electronic devices under this section.

This statute had an effective date of January 1, 1984. The instant offense was committed on January 18, 1984.

The only factual basis for appellant’s grounds of error was developed on cross-examination of the arresting officer when she elicited the following:

Q. Did you offer to give her a video?

A. No, sir. We did not.

Q. Is it true that you did not have a video or the machinery for the video at that time?

A. That is correct, sir.

Q. So it was impossible to give her a video tape of her taking the field sobriety test; is that correct?

A. Yes, sir. We had no means to do it with.

Q. Because somebody had failed to provide you with the proper equipment or any equipment; is that correct?

A. I don’t know why we did not have it. We did not have it and we could not video tape it.

Q. Did you have the equipment?

A. No, sir. We did not have the equipment.

Q. And this was on January the 18th, 1984?

A. Yes, sir.

Q. So obviously someone failed to provide you with the equipment?

A. As I stated, I cannot testify as to why we did not have it because I do not know.

Q. Was there a video tape machine anywhere else in the police department at the time?

A. The only one that I know for sure that I can testify is out in the police academy.

Q. Where is the police academy located?

A. Out on Aldine-Westfield.

Q. Is that for giving lectures and so forth?

A. Yes, sir.

The trial court instructed the jury:

You are instructed that under the laws of Texas, a county with a population of 25,000 or more is required to provide electronic devices capable of visually recording a person immediately after his arrest for the offense of driving while intoxicated. Evidence has been introduced in this case that such electronic device was not available in Harris County on January 18, 1984, and that therefore the officer failed to visually record the defendant in this case. This is no evidence that the defendant was intoxicated or was not intoxicated. In your deliberations you shall not consider for any purpose, allude to, comment on or discuss the unavailability of the recording as evidence that the defendant was or was not intoxicated. This evidence has been admitted for the sole purpose of showing, if you so find, the unavailability of a required visual recording at the time of the arrest and the reason therefor.

In her first ground of error appellant contends the court erred in instructing the jury that the absence of an “electronic recording of the defendant at the time of the arrest” could not be considered “as evidence of her intoxication or lack of intoxication” as such was contrary to law and in the second ground she contends the instruction constituted a comment on the weight of the evidence. Appellant groups both grounds for discussion and we will do likewise.

While appellant’s argument is far from clear, it appears to be her position that even if the electronic devices capable of visually recording the person arrested were not available, the fact that the arresting officer did not visually record the accused would be “positive circumstantial evidence of her innocence at the trial of the matter, as allowed by that statute.” The question concerning the interpretation to be given to the statute where the arresting officer consciously and intentionally refuses to “visually record” the accused when equipment in proper working order is available for that purpose is not before us for review. While we recognize serious questions concerning the application of this extremely vague statute, we reserve a discussion of that issue for a case where properly presented.

In order to constitute proper evidence in Texas, the evidence must be material and relevant. Tex.R.Evid. 401 (Vernon 1983). In this case, the evidence that appellant was not video taped because the police did not have the equipment was probative neither of guilt nor innocence. As such, the trial court’s instruction to the jury that the failure of the police to video tape appellant was “no evidence that the defendant was intoxicated or was not intoxicated” was not a comment on the weight of the evidence.

We furthermore cannot agree with appellant’s argument that the “instruction was calculated to injure the rights of the defendant to have the absence of the video tape considered as part of the operative circumstantial evidence that she was not-in-fact intoxicated on the evening of January 18, 1984.... ” Appellant’s first two grounds are overruled.

In her two final grounds, appellant contends the court erred in failing to grant her motion for directed verdict because the arresting officer had failed to video tape her following her arrest. In view of our disposition of appellant’s first and second grounds, we need not address these issues.

The judgment is affirmed.