Rebecca Dee Akins v. State ( 2007 )

Affirmed and Memorandum Opinion filed June 28, 2007

Affirmed and Memorandum Opinion filed June 28, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00545-CR

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REBECCA DEE AKINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 2

 Harris County, Texas

Trial Court Cause No. 1355147

M E M O R A N D U M   O P I N I O N

Rebecca Dee Akins appeals a conviction for driving while intoxicated (ADWI@), asserting in a single issue that the trial court erred in admitting a videotape into evidence.  We affirm.

Factual and Procedural Background

At about 9:30 p.m. on February 2, 2006, Sergeant Albert Zavala of the Houston Police Department (AHPD@) stopped appellant for speeding.  After approaching her vehicle to explain why he had made the traffic stop, Sergeant Zavala detected a Amoderate@ odor of alcohol on appellant=s breath, noticed her eyes were red, and found her speech to be Afair.@  Responding to Sergeant Zavala=s questions, appellant admitted that she had consumed an alcoholic beverage earlier in the evening.  Sergeant Zavala asked appellant to step out of her vehicle and he then administered a horizontal gaze nystagmus (AHGN@) test.  Because he found that appellant exhibited clues indicating possible intoxication, Sergeant Zavala radioed for the dispatch of an officer certified in the administration of standardized field sobriety testing. In response to this request, HPD Officer Donald Egdorf arrived at the scene about thirty minutes later.

 Officer Egdorf, a member of the HPD DWI task force, administered four field sobriety tests to appellant.  This process was recorded by the in-dash video camera in Officer Egdorf=s police vehicle, but because the microphone was not working, no audio was captured.  Officer Egdorf arrested appellant for DWI because her physical condition and performance on the field sobriety testing indicated to him that she had lost the normal use of her physical and mental faculties.  Once appellant was transported to the police station, she refused to provide a breath sample^[1] and was processed for DWI. 

After being charged by information with the misdemeanor offense of DWI, appellant pleaded not guilty.  A jury convicted her of DWI, and the trial court sentenced her to 180 days= confinement, suspended for one year, and a $500 fine.

Issue and Analysis

In her sole issue, appellant contends the trial court erred in admitting the videotape  from the roadside stop into evidence at trial because the audio portion was not recorded due to the non-working microphone.  She complains that, without any audio, the videotape was unduly prejudicial and its admission misled the jury and denied her a fair trial.

We review the admission of evidence for an abuse of discretion.  Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).  So long as the trial court=s decision was within the zone of reasonable disagreement, we will not disturb it on appeal.  Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh=g).  Although admissible, evidence may be excluded if its relevance is outweighed by a danger that it will unfairly prejudice, confuse, or mislead the jury, if its inclusion will result in undue delay, or if it is needlessly cumulative.  Tex. R. Evid. 403; see also Casey, 215 S.W.3d at 879.  Because Texas Rule of Evidence 403 favors admissibility of relevant evidence,^[2] the presumption is that such evidence will be more probative than prejudicial.  Casey, 215 S.W.3d at 879.  The burden is on the opponent of the proffered evidence to demonstrate the negative attributes of the evidence and to show how those negative attributes substantially outweigh the probative value of the evidence.  Goldberg v. State, 95 S.W.3d 345, 367 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d).

In the trial court appellant objected to the admission of the road-side videotape under Rule 403^[3] on the ground that Ait was damage [sic] because there was no audio [and] the videotape itself was rendered to be far more prejudicial than probative.@  On appeal, appellant asserts, in a conclusory manner, that the admission of the videotape without accompanying audio was unfairly prejudicial and misleading to the jury because the State told the jury that, based on the instructions appellant received from the officer, she failed the roadside sobriety tests.  However, Officer Egdorf testified that he provided both oral and demonstrative instructions prior to administering each test, that appellant acknowledged she understood his instructions, and that, on each of the tests, appellant exhibited multiple clues indicating intoxication.  Importantly, Officer Egdorf testified that these tests were not necessarily Apass/fail,@ but instead that the administrator looks for clues indicating intoxication.^[4] He explained that appellant=s inability to understand and follow directions was a factor he considered in determining whether she had the normal use of her mental faculties.  Appellant, on the other hand,  repeatedly claimed that Officer Egdorf failed to provide instructions prior to administering the field sobriety tests.

Although the audio portion of the videotape would have resolved the contested issue of whether Officer Egdorf properly instructed appellant on each test, the absence of audio impacted both appellant and the State equally as to this issue.  The absence of the audio portion lent no more credence to Officer Egdorf=s claim that he explained the tests thoroughly to appellant than it did to appellant=s claim that Officer Egdorf failed to explain the tests to her.  Appellant contends that the Aabsence of audio deprived the jury of the ability to observe [a]ppellant at the scene in proper context.@  However, the videotape depicted precisely how appellant physically performed the field sobriety tests immediately before her arrest and therefore it was probative of the state of her physical faculties.^[5]  Thus, appellant has failed to rebut the presumption that this videotape was more probative than prejudicial.  See Casey, 215 S.W.3d at 879.  Under these circumstances, we conclude that the trial court acted within its discretion in admitting the videotape into evidence.   Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed June 28, 2007.

Panel consists of Justices Yates, Seymore, and Frost.

Do not publish C Tex. R. App. P. 47.2(b).

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^[1]           According to appellant, she offered to provide a blood sample in lieu of the breath sample requested by HPD.

^[2]           Appellant does not contest the relevance of the videotape.

^[3]           The record indicates appellant objected under A4 or 3,@ which we presume is a typographical error by the court reporter because appellant went on to urge that the videotape was Afar more prejudicial than probative,@ which we interpret as a reference to Rule 403.

^[4]           For example, in response to the State=s question regarding the HGN test, Officer Egdorf stated, AIt=s not necessarily a pass/fail.  It=s that she exhibited the maximum number of clues that you could on that test.@  Regarding the Rhomberg test, Officer Egdorf replied that appellant=s performance was Aoutside of what we=d consider a normal range. . . .@  When the State asked whether the one-leg stand test was considered a pass/fail test, Officer Egdorf replied, AIt=s got clues assigned to it and like [the] other ones you don=t typically say it=s pass/fail. You either exhibit clues or you don=t exhibit clues.@  Finally, the following colloquy occurred regarding the walk-and-turn test:

[the State]: So in this particular situation, how many clues were possible on this test?

[Egdorf]: There [are] eight clues possible on this test.

* * *

[the State]:  And how many clues did she exhibit?

[Egdorf]: She exhibited actually seven clues; however, I marked her off as a Acan=t do the test@.

* * *

[the State]: Okay.  So that test is designed for divided attention; she failed that test, right?

[Egdorf]: If you had to say it=s pass/fail, which I usually don=t like to do, yeah, it was a failure.  I prefer to say she exhibited the maximum number of clues.

^[5]           Moreover, the jury was authorized to convict appellant if it determined she had lost the normal use of her mental or physical faculties.  Because the jury could have based its verdict on a determination that appellant had lost the normal use of her physical faculties, we cannot say that the absence of audio had a substantial and injurious effect or influence in determining the jury=s verdict.  See Webb v. State, 36 S.W.3d 164, 182 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).