Fischer, John Robert

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0043-07

JOHN ROBERT FISCHER, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY

Hervey, J., filed a dissenting opinion in which Keller, P.J., Meyers and

Keasler, JJ., joined.

DISSENTING OPINION

The State claims that the court of appeals erroneously decided that Rule 803(8)(B) "trumps" Rule

803(1). The Court decides that Rule 803(8)(B) does not "trump" Rule 803(1) (1) and also states that the

court of appeals did not say this. (2) The court of appeals and this Court have, however, essentially decided

that Rule 803(8)(B) "trumps" Rule 803(1).

The following hypothetical illustrates how the Court's opinion does, in fact, decide that Rule

803(8)(B) "trumps" Rule 803(1). Suppose that a police officer and a private citizen come upon the scene

of a traffic accident involving two cars. The police officer and the private citizen walk to one of the

wrecked cars and observe an open container of alcohol inside. It takes the police officer and the private

citizen a few seconds to walk over to another bystander at the accident scene. Having had the opportunity

of "thinking about it" during this brief period of time, the police officer and the private citizen immediately

state to the bystander that they observed an open container of alcohol inside one of the wrecked cars.

Even though the police officer's and the private citizen's out-of-court declarations to the bystander were

based on their observations of the same event at the same time and were made under identical

circumstances, the Court's opinion apparently would allow the private citizen's out-of-court declaration

to be admitted as a present sense impression, (3) but would exclude the police officer's out-of-court

declaration as a "speaking offense report." (4) By admitting the former while excluding the latter, the Court's

opinion really does decide that Rule 803(8)(B) "trumps" Rule 803(1). (5)

I disagree with the Court that, in analyzing whether Martinez's out-of-court statements qualify as

present sense impressions, it is appropriate to look "to the rationale for excluding law enforcement reports

under Rule 803(8)(B) by analogy." (6) This case would present a "speaking offense report" (7) scenario under

Rule 803(8)(B) had Martinez, in accordance with how offense reports are usually prepared, dictated his

on-the-scene observations as part of an offense report some time after the events in question after having

had the opportunity of "[t]hinking about it." But, that is not what occurred here. The brief period of time

(a few seconds) between Martinez's observation of the events and his description of them on the audiotape

provided him with very little opportunity of "[t]hinking about it" and does not present a setting "brimming

with the potential for exaggeration or misstatement." (8) And, though Martinez may have been "engaged in

the competitive enterprise of ferreting out crime," (9) this short time interval provided little or no time for

calculated misstatement (10) and it still eliminated the four "hearsay dangers" of faulty perception, faulty

memory, accidental miscommunication, or insincerity. (11) The contemporaneity and "immediately thereafter"

requirements of Rule 803(1) remove any analogy between cases like this and Rule 803(8)(B). (12)

The admissibility of the statements at issue in this case should be analyzed under the usual factors

for determining whether statements qualify as present sense impressions under Rule 803(1). (13) Two

essential elements of the present sense impression exception to the hearsay rule are: (1) substantial

contemporaneity between the out-of-court statements and the event or condition they describe, and (2)

spontaneity of these out-of-court statements. (14) As to the substantial contemporaneity requirement,

commentary to Federal Rule 803 states:

Rule 803(1) adopts the increasingly accepted new hearsay exception for statements

describing or explaining an event or condition made while the declarant was perceiving the

event or condition or immediately thereafter. The theory underlying Rule 803(1),

according to the Advisory Committee Note, is that "substantial contemporaneity of event

and statement negative the likelihood of deliberate or conscious misrepresentation." The

critical element, therefore, is contemporaneity; the statement must be made at the time that

the event or condition is being perceived or immediately thereafter. If the statement is

made right at the time of the event, it is assumed that the declarant had no time to lie about

it; and there is little chance of misstatement due to loss of memory.

While contemporaneity is critical to admissibility, there is in fact no talismanic time period

for admission as a present sense impression. Admissibility is determined on a case-by-case basis, in which the Court investigates the circumstances of the statement to determine

whether the declarant had significant time for reflection.[ (15) ]

And, in Illinois Central R.R. Co. v. Lowery , 63 So. 952, 953 (Ala. 1913), the Alabama Supreme

Court described the spontaneity requirement as follows:

The mere fact that a declaration is contemporaneous with the transaction in issue, and even

relates to and is prompted by it in a general way, does not render it admissible in evidence.

Such a declaration, to have testimonial verity and value, and hence to be admissible by way

of exception to the rule that excludes hearsay in general, must directly relate to and in some

degree illustrate and explain the occurrence in question; and essentially, it must be the

apparently spontaneous product of that occurrence operating upon the visual, auditory, or

other perceptive senses of the speaker. The declaration must be instinctive rather

than deliberative-in short, the reflex product of immediate sensual impressions,

unaided by retrospective mental action . These are the indicia of verity which the law

accepts as a substitute for the usual requirements of an oath and opportunity for cross-examination.

(Emphasis supplied). (16)

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. See Hallums , 841 A.2d at 1277 ("underlying rationale for

the present sense impression exception is that '[s]tatements of present sense impression are considered

reliable because the immediacy eliminates the concern for lack of memory and precludes time for intentional

deception'"). Martinez's out-of-court factual assertions also satisfy the spontaneity requirement because

they are "instinctive rather than deliberative-in short, the reflex product of immediate sensual impressions,

unaided by retrospective mental action." See Lowery , 63 So. at 953 ; (17) Waltz, supra at 876 (spontaneity

is an inference drawn from the required absence of any appreciable time lapse between event or condition

and descriptive comment); 46 Colum.L.Rev. at 439 (spontaneity requirement usually satisfied when

contemporaneity requirement is satisfied).

There are in this particular case other reliability-insuring safeguards that may be absent in other

present sense impression cases. For example, Martinez's out-of-court factual assertions apparently would

have been elicited (not through a third-party witness) but through Martinez himself, who would have been

subject to cross-examination on these statements. (18) In addition, Martinez's out-of-court factual assertions

were captured on the audiotape and, therefore, would not be elicited at trial based only on his memory of

the events. One of the most important reliability-insuring safeguards in this case is the videotape itself,

which corroborates most of Martinez's out-of-court statements on the audio portion of this videotape. (19)

Applying these considerations to this case, the trial court could not have abused its discretion to decide that

Martinez's out-of-court factual assertions qualify as present sense impressions. (20)

The Court's opinion also seems to suggest that Martinez's out-of-court statements cannot qualify

as present sense impressions because they are "testimonial" for purposes of federal constitutional

Confrontation Clause analysis under Crawford v. Washington , 541 U.S. 36 (2004). (21) It is not clear that

Martinez's out-of-court statements are "testimonial." Even if they are, this Court has held that an out-of-court statement qualifying as an excited utterance under Rule 803(2) can also be "testimonial." See

generally Wall v. State , 184 S.W.3d 730 (Tex.Cr.App. 2006). The Court's opinion characterizes a

present sense impression under Rule 803(1) and an excited utterance under Rule 803(2) as unreflective

statements. See Maj. Op. at 6. If, under Wall , an excited utterance can be "testimonial," then so can a

present sense impression. It is also noteworthy that Martinez's out-of-court factual assertions would be

admissible at trial under Crawford , as long as Martinez was available for cross-examination.

Finally, the "[t]hinking about it" rationale in the Court's opinion does not apply to all of Martinez's

out-of-court statements such as his out-of-court statement, "I smell alcohol," when Martinez asked

appellant if he had any alcohol in the car. (22) In addition, the Court's opinion seems to suggest that the entire

audiotape is inadmissible, when both appellant and the court of appeals have acknowledged that some

portions of the audiotape "would be admissible." See Fischer , 207 S.W.3d at 850. For example,

appellant's statement to Martinez that he had "Three Wines" should not be excluded by anything that the

Court's opinion says.

I respectfully dissent.

Hervey, J.

Filed: January 16, 2008

Publish

1. See Maj. Op. at 13 (Rule 803(8)(B) does not "trump" Rule 803(1)).

2. See Maj. Op. at 11 ("The court of appeals did not say this.").

3. A trial court would not abuse its discretion to admit the private citizen's out-of-court declaration

as a present sense impression under Rule 803(1), since it is a "statement describing or explaining an event

or condition made while the declarant was perceiving the event or condition, or immediately thereafter."

4. Another hypothetical illustrating this principle would be a private citizen at the scene in this case

observing the same events as Martinez and a few seconds later (i.e., "immediately thereafter") giving a

description of these events on audiotape (such as, for example, appellant twice failing the one-leg stand

test). Under the Court's opinion, these private citizen out-of-court recorded statements apparently would

qualify as present sense impressions.

5. If Rule 803(8)(B) does not "trump" Rule 803(1), then it would not be necessary for the Court's

opinion to state that Rule 803(1) cannot be used as a "back door" to admit evidence excluded by Rule

803(8)(B). See Maj. Op. at 17 ("Rule 803(1) cannot be used as a back door to admit evidence explicitly

inadmissible under Rule 803(8)(B)") (internal quotes omitted). This echoes the decision in Cole v. State ,

which decided that the business records exception to the hearsay rule set out in Rule 803(6) also cannot

be used as a "back door" to admit evidence excluded by Rule 803(8)(B). See Cole v. State , 839 S.W.2d

798, 806-13 (Tex.Cr.App. 1990) (op. on reh'g).

Some of the commentary to Fed. R. Evid. 803 suggests, however, that a proper application of

Rule 803(8)(B) would not create a conflict with Rule 803(6); thus not requiring a decision whether Rule

803(6) could be used as a "back door" for admitting evidence that is inadmissible under Rule 803(8)(B).

See USCS Federal Rules of Evidence, Rule 803 (1998), commentary by Stephen A. Saltzburg, Daniel J.

Capra, and Michael M. Martin at 377-78 stating:

In criminal cases, the argument has sometimes been made that a report that is inadmissible

due to the exclusionary language of Rule 803(8)(B) . . . can nonetheless be admitted as a

record of regularly conducted activity under Rule 803(6). However, if the exclusionary

language is properly applied so as to exclude only those law enforcement reports that are

subjective and made under adversarial circumstances-which is the position taken by most

Courts, as discussed above-then there is no conflict between the Rules. This is because

records that are prepared in anticipation of litigation are excluded under the trustworthiness

criterion of Rule 803(6); and those are, in effect, the only records that are excluded under

the prevailing view of Rule 803(8). Accordingly, under the predominant approach to Rule

803(8), the issue of whether a law enforcement report excluded under Rule 803(8) can

nonetheless be admitted under Rule 803(6) does not arise. Such a report is by definition

untrustworthy and inadmissible under both Rules. (Citation omitted).

6. See Maj. Op. at 11-12.

7. See Maj. Op. at 2, 16.

8. See Maj. Op. at 20.

9. See Maj. Op. at 12, 16.

10. See Maj. Op. at 8 fn. 15.

11. See Maj. Op. at 5-6, 8 fn. 15.

12. In addition, even if Martinez's out-of-court statements could be considered a "speaking offense

report," Rule 803(8)(B) arguably would not exclude these out-of-court statements, since Martinez

apparently would have testified at trial and been subject to cross-examination on them. See Saltzburg,

supra , at 377 (noting that most courts have held that the exclusion in Rule 803(8)(B) "is inapplicable where

the public official who prepared the report actually testifies at trial").

13. The following authorities present an accurate picture of the history and scope of the present sense

impression exception to the hearsay rule from when it was part of the common-law res gestae rule to its

current codification in the federal and state evidentiary rules. See Hallums v. United States , 841 A.2d

1270, 1276-79 (D.C. 2004); USCS Federal Rules of Evidence, Rule 803(1) (1998), Advisory Committee

Notes at 335-356; Saltzburg, supra , at 357-61; Jon R. Waltz, The Present Sense Impression Exception

to the Rule Against Hearsay: Origins and Attributes , 66 Iowa L. Rev. 869 (1981); Note,

Spontaneous Exclamations in the Absence of a Startling Event , 46 Colum. L. Rev. 430 (1946).

14. See Hallums , 841 A.2d at 1277-78 (out-of-court statements sought to be admitted as present

sense impressions must have been "made spontaneously and contemporaneously with the events described"

and "care must be taken to ensure that [present sense impression exception] is not used to admit statements

that circumstances reveal were not truly spontaneous, but instead involved conscious reflection or recall

from memory"); Federal Rule 803(1), Advisory Committee Notes at 336 (spontaneity "is the key factor");

46 Colum. L. Rev. at 437-38 (out-of-court statement must be spontaneous and contemporaneous with

the event or condition).

15. Saltzburg, supra at 357.

16. See also Municipality of Bethel Park v. Workmen's Compensation Appeal Board , 636 A.2d

1254, 1257 (Pa. Commw. Ct. 1994) (applying this definition of "spontaneous" and discussing origin of

present sense impression exception as being first espoused by "Professor James B. Thayer in Bedingfield's

Case-Declarations as Part of the Res Gestae, 15 Am. L. Rev. 1 (1881), where he concluded that

contemporaneous statements pertaining to any event, whether exciting or not, fell within the res gestae

exception because the assurance of reliability stemmed not from the excitement of the circumstances but

rather from the spontaneity of the utterance"); Waltz, supra at 870-75 (also crediting Professor Thayer with

inventing the present sense impression exception and discussing origins of this exception up to its

promulgation as Rule 803(1) in federal rules of evidence); 46 Colum. L. Rev. at 438 ("all the [spontaneity]

requirement need mean is that there be no apparent motive to lie"); Advisory Committee Notes to Federal

Rule 803(1) at 336 (spontaneity is a key factor).

17. It cannot be said that Martinez's out-of-court statements were premeditated, contrived, or planned,

which are antonyms of "spontaneous." See Roget's Desk Thesaurus (2001) at 508.

18. See Hallums , 841 A.2d at 1276 (additional assurance of reliability is that out-of-court statement

will usually have been made to a third person (usually the witness who testifies to it) who was also present

at the event described and may be cross-examined on the statement) and at 1278-1279 (discussing varying

approaches by other jurisdictions to admission of statements as present sense impressions, particularly a

"corroboration" requirement as an additional safeguard of reliability); Saltzburg, supra at 357 ("To satisfy

the timing, relationship, and event requirements, the [third-party] witness in Court is probably going to have

to be able to corroborate to some extent that the event actually occurred, unless the declarant is present

to so testify or there is some other source of corroboration") (emphasis supplied); Advisory Committee

Notes to Federal Rule 803(1) at 336 ("The underlying theory of [Rule 803(1)] is that substantial

contemporaneity of event and statement negative the likelihood of deliberate of [sic] conscious

misrepresentation. Moreover, if the witness is the declarant, he may be examined on the statement .

If the witness is not the declarant, he may be examined as to the circumstances as an aid in evaluating the

statement.") (emphasis supplied).

19. For example, the videotape depicts appellant "swaying, hopping, and putting his foot down twice"

while appellant was performing a one-leg stand test. "[A]lmost immediately" after this, Martinez can be

heard saying that appellant was "swaying, hopping, and putting his foot down twice."

20. The reliability-insuring safeguards that qualify Martinez's out-of-court factual assertions as present

sense impressions should also make it very difficult, if not impossible, to conclude, under a proper

application of Rule 803(8)(B), that these out-of-court statements are a "speaking offense report."

21. See Maj. Op. at 19, and at 6 fn.10, and at 7 fn. 12, and at 15 fn. 35.

22. See Maj. Op. at 2.