State v. Desiree Hope Russell ( 2012 )

Opinion issued August 2, 2012.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00411-CR
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THE STATE OF TEXAS, Appellant
V.
DESIREE HOPE RUSSELL, Appellee
On Appeal from the County Court at Law No. 1
Fort Bend County, Texas
Trial Court Case No. 09-CCR-144297
MEMORANDUM OPINION
The State of Texas appeals from the trial court’s granting of appellee
Desiree Hope Russell’s motion to suppress evidence in the underlying case, in
which she was charged with the offense of driving while intoxicated. In five
points, the State urges that the trial court abused its discretion in granting Russell’s
motion to suppress a forty-two-minute video and audio recording depicting Russell
at the scene of her arrest and during the ride from the scene to jail.
We affirm.
Background
On July 16, 2009, Russell was charged with driving while intoxicated which
was alleged to have occurred on June 16, 2009. Russell moved to suppress a video
and audio recording of her taken at the scene of her arrest and during her
subsequent ride to jail in the back of the patrol car. The video and audio were
recorded by the in-car camera of the arresting officer, Deputy J. Norsworthy of the
Fort Bend County Sheriff’s Department. At the hearing on the motion to suppress,
the State presented the testimony of two deputies who were on the scene when
Norsworthy activated his in-car camera, performed field sobriety tests, and arrested
Russell. Norsworthy did not testify; it is undisputed that he died in an unrelated
incident before the hearing.
Deputy M. Manuel testified that he was off-duty on June 16, 2009 when he
saw a black SUV swerving in traffic. At the hearing, Manuel identified the driver
of the vehicle as Russell. Manuel called the Fort Bend CountySheriff’s Office
dispatch to report the driver. When Russell stopped her SUV at a stop light,
Manuel saw that Russell’s eyes were closed and her head was down. He woke
Russell and waited for an on-duty officer to arrive. He testified that he remained at
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the scene after Norsworthy arrived and watched Norsworthy conduct the field
sobriety tests and arrest Russell. Manuel testified that State’s Exhibit one, a DVD
containing a copy of the recording of Russell on the day of her arrest, accurately
reflected what he saw on the road on the day of Russell’s arrest. However, Manuel
could not say whether Norsworthy conducted the field sobriety tests correctly
because of the distance between him and Norsworthy. And while it did not appear
to Manuel that any changes to the recording had been made, he testified that he
could not be sure the recording had not been edited.
Deputy F. Turner also testified at the hearing. Turner testified that he
arrived at the scene at about the same time as Norsworthy. Turner observed
Norsworthy perform the field sobriety tests and could hear what Norsworthy said
to Russell. On cross-examination, Turner admitted that there were times that he
looked away from Norsworthy and Russell and that he did not see all parts of the
field sobriety tests. With respect to authenticity, Turner testified that he had seen
the recording on State’s Exhibit one, and that it was an accurate video of what took
place at the scene of the arrest.
Deputy B. Wall testified about the department’s procedure for handling
recordings made by in-car cameras. Wall stated that he was in charge of
maintaining the department’s recording system and fulfilling video copy requests.
Wall explained the process by which he maintained the recordings, noting that the
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in-car recordings automatically upload to the system when a patrol car enters the
area surrounding the station. Wall testified that the software used to maintain the
recordings did not allow for editing of any kind, that all hardware and software for
the recording system were locked in his office, and that he specifically copied the
recording contained on State’s Exhibit one.
At the hearing, Russell’s counsel urged the trial court to suppress State’s
Exhibit one based on lack of probable cause, because it violated Russell’s right to
confrontation, and because the State had failed to authenticate it. The State
conceded that “there are statements throughout the video that are testimonial” and
agreed that it would not “put in any evidence of Officer Norsworthy testifying to
any material.” But the State argued that the recording also contained Russell’s
“outbursts” which the State contended were “non-hearsay under [Rule] 801 that
should definitely come in.” The State also argued that “street-corner conversations
. . . are non-testimonial . . . and that’s what the majority of this case is.” At the
conclusion of the hearing, the trial court announced its ruling as follows:
The Court: Counsel, I’ve heard the arguments. I read the cases; and
based on the testimony that I’ve heard today and the viewing of the
video, I’m going to deny the Motion to Suppress as far as probable
cause; but I am going to suppress the video.
The State: And Judge, just to be clear, is that the video in its entirety
or just the testimonial?
The Court: The video in its entirety.
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....
The State: I guess your finding is that it’s testimonial. Is that why?
The Court: Well, there’s —there[are] several issues.
The State: Okay.
The Court: I’m not going to go into them. I’m going to suppress the
video.
The State: I understand. I understand.
The trial court entered findings of fact and conclusions of law. Its findings
of fact state that State’s Exhibit one contained, among other things, interrogations
and questioning of Russell, Norsworthy administering scientific field sobriety tests,
verbal questioning and conversation between Russell and Norsworthy, and
Norsworthy verbally and physically arresting Russell. Its conclusions of law state
that admitting State’s Exhibit one, which contained testimonial hearsay statements,
would violate Russell’s right to confrontation guaranteed by the Sixth Amendment
of the United States Constitution, the Texas constitution, and the hearsay rule. The
trial court also concluded that the State failed to authenticate State’s Exhibit one.
The State appealed. Importantly, although it proffered State’s Exhibit one,
the entire forty-two-minute recording, as its only exhibit at the hearing, the State
notes that, on appeal, it “seeks appellate review” of only two discrete portions of
State’s Exhibit one: (1) a two-and-a-half-minute clip that depicts Russell
performing field sobriety tests at the scene of her arrest, and (2) a two-minute clip
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that depicts Russell’s behavior in the back of Norsworthy’s patrol car during a
portion of the ride from the scene of her arrest to jail. In other words, the State
seeks a reversal of the trial court’s ruling with respect to two portions of the
recording it contends are admissible despite the fact that the trial court was never
asked to rule on their admissibility but, rather, was asked only to rule on the
admissibility of the forty-two-minute recording in its entirety.
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence for an
abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
We review the record in the light most favorable to the trial court’s ruling. Id. We
will sustain the trial court’s ruling if it is reasonably supported by the record and is
correct on any theory of law applicable to the case. Id. We give almost total
deference to the trial court’s determination of historical facts and review de novo
the trial court’s application of the law to those facts. Id. Finally, we must review
the trial court’s ruling in light of what was before the trial court at the time the
ruling was made. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App.
2000).
Analysis
Here, the trial court suppressed the entire forty-two-minute video and audio
recording offered as State’s Exhibit one. Although the State concedes the
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inadmissibility of some portions of State’s Exhibit one, it urges this court to
determine that two short clips within State’s Exhibit one are in fact admissible, and
to reverse the trial court’s ruling on the basis that the trial court should have
admitted those two clips. Its brief states:
The trial court suppressed the entire video of the investigation and
[Russell’s] arrest and ride to the jail. The State seeks appellate review
of only the one-leg stand and the walk-and-turn field sobriety tests
and a portion of [Russell’s] ride to the jail showing her spontaneous
statements and acts. . . . The trial court abused its discretion in
suppressing at least these portions of the recording.
While portions of State’s Exhibit one may have been admissible, the record does
not reflect that the State ever proffered to the trial court—or obtained a ruling on
the admissibility of—a redacted version of State’s Exhibit one containing only the
clips of which the State now seeks review. Rather, both the State and Russell
argued the admissibility of State’s Exhibit one as an all-or-nothing proposition.
The only request they made of the trial court was that it rule on the admissibility of
State’s Exhibit one in its entirety.
The Court of Criminal Appeals has held the State, in an appeal from a trial
court’s decision to grant a motion to suppress, cannot obtain a reversal based on an
argument that was not presented to the trial court. See State v. Steelman, 93
S.W.3d 102, 106–08 (Tex. Crim. App. 2002) (holding that State, in its appeal from
trial court’s ruling on motion to suppress, cannot rely on theory that was not
presented to trial court). Similarly, here, the State cannot obtain a reversal of the
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trial court’s decision to suppress State’s Exhibit one by seeking review of an
evidentiary proffer different from the one offered in and ruled upon by the trial
court. See id. Accordingly, we conclude that the State’s argument on appeal—that
this Court should reverse the ruling of the trial court as to two particular portions of
State’s Exhibit one, despite the fact that the trial court was never asked to rule on
the admissibility of those two clips—has not been properly preserved and
presented for interlocutory review.1 See TEX. R. APP. P. 33.1(a); Martinez v. State,
91 S.W.3d 331, 337 (Tex. Crim. App. 2002) (noting that the “raise it or waive it”
rule requiring the parties to bring to trial court’s attention “the very complaint that
party is now making on appeal” applies equally to State and defendant and holding
that trial court “cannot be held to have abused its discretion merely by ruling on the
only theories of law presented to it”); State v. Mercado, 972 S.W.2d 75, 77–78
(Tex. Crim. App. 1998) (noting, in State’s appeal from order suppressing evidence,
“the basic principle of appellate jurisprudence that points not argued at trial are
deemed to be waived applies equally to the State and the defense,” and courts of
appeal have no latitude to reverse trial court’s decision on theories not previously
presented to trial court for its consideration).
1
Because of this disposition, we do not address and express no opinion on the
merits of the points of error raised by the State.
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Conclusion
We affirm the trial court’s order granting Russell’s motion to suppress the
video and audio recording contained in State’s Exhibit one.
Rebeca Huddle
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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