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

Cochran, J., delivered the opinion of the Court in which Price,

Womack, Johnson, and Holcomb, JJ., joined. Hervey, J., filed a dissenting

opinion in which Keller, P.J., Meyers, and Keasler, JJ., joined.

O P I N I O N

This case presents a novel question in Texas evidentiary law: Are a law enforcement

officer's factual observations of a DWI suspect, contemporaneously dictated on his patrol-car

videotape, admissible as a present sense impression exception to the hearsay rule under Tex.

E. Evid. 803(1)? (1) They are not. An officer may testify in the courtroom to what he saw, did,

heard, smelled, and felt at the scene, but he cannot substitute or augment his in-court testimony

with an out-of-court oral narrative. This calculated narrative in an adversarial setting was a

"speaking offense report." It was not the type of unreflective, street-corner statement that the

present sense impression exception to the hearsay rule is designed to allow. We therefore

agree with the Fourteenth Court of Appeals, which had held the same. (2)

I.

At about 1:40 a.m. on May 29, 2004, DPS Trooper Martinez turned on his dashboard-mounted video camera and announced, on tape, that he was pulling over a driver who wasn't

wearing a seatbelt. After the driver, appellant, parked his truck in his apartment complex

parking lot, Trooper Martinez approached appellant and began questioning him. All of that

questioning was recorded through Trooper Martinez's body microphone and captured on

camera.

Trooper Martinez asked for appellant's driver's license and insurance; appellant

responded that he had just moved. The trooper then asked appellant whether he had "any

alcohol in the car," and quickly added, "I smell alcohol." Trooper Martinez then asked

appellant, "How much alcohol have you had this evening?" And appellant replied, "Three

wines." Trooper Martinez told appellant to stay where he was, and the trooper walked back to

his patrol car and dictated into his microphone that appellant had "glassy, bloodshot eyes" and

"slurred speech." The trooper stated that he had smelled "the strong odor of alcoholic

beverage."

Trooper Martinez then walked back to appellant and asked him if there was any reason

why he was not wearing a seatbelt. Appellant said that he was "depressed" over his recent

divorce. Trooper Martinez asked appellant if he had any weapons or drugs. Appellant said

"No," but Trooper Martinez opened the driver's door of appellant's truck and got inside to

make a cursory search. Finding nothing, the trooper got back out and told appellant, "I'm going

to conduct a small exam of your eyes." He directed appellant to stand outside the range of the

video camera and administered a horizontal gaze nystagmus (HGN) test.

After the HGN test was completed, Trooper Martinez again left appellant and returned

to his patrol car and recorded the following observations:

Subject has equal pupil size, equal tracking, has a lack of smooth pursuit in both

eyes, and has distinct nystagmus at maximum deviation in both eyes. Subject

also has onset of nystagmus prior to forty-five degrees in both eyes.

Trooper Martinez also dictated into his microphone: (1) he stated that he had seen a "wine

opener" in appellant's truck; (2) he repeated that there was a strong odor of alcohol on

appellant's breath; and (3) he again noted that appellant had glassy, bloodshot eyes and "slurred

speech."

The trooper then told appellant to stand in front of the patrol car and asked him to

perform field sobriety tests. After appellant performed the heel-to-toe test, Trooper Martinez

again told appellant to "stay right here," while he returned to his patrol car and dictated on tape

that "subject gave several clues," including the fact that appellant had started too soon, lost his

balance while being given instructions, failed to touch his heel to his toe, "stepped off the line

two times," made an "improper turn," and used his hands for balance.

Trooper Martinez returned to where appellant was standing and told him to perform a

"one-leg stand" test. After that test was completed, the trooper told appellant to remain where

he was, and the trooper once again returned to his patrol car where he verbally recorded that

appellant "gave several clues" to intoxication and noted that appellant swayed, hopped, and put

his foot down twice. Trooper Martinez recorded that he had given appellant "a second chance

to do it," but appellant "indicated the same clues." Trooper Martinez then dictated: "Subject

is going to be placed under arrest for DWI." The videotape then shows Trooper Martinez

returning to appellant, saying, "I believe you are drunk," and arresting him.

After appellant was charged with DWI, he filed a motion to suppress the audio portion

of the patrol-car videotape, claiming that it contained Trooper Martinez's "bolstering, self-serving statements about what he was allegedly doing and seeing." It was "a highly prejudicial

and inflammatory narrative" of what Trooper Martinez would have the viewer believe was

taking place. The trial judge denied appellant's motion and concluded that the audio narrative

was admissible as a "present sense impression." (3) Appellant then pled nolo contendere and

appealed the trial court's ruling on his motion to suppress Trooper Martinez's orally recorded

factual observations during his DWI investigation.

The court of appeals concluded that the trial court had erred. It held that Trooper

Martinez's recorded commentary did not qualify as a present sense impression:

Instead, his comments are a calculated narrative statement in which Martinez

does not merely explain or describe events, but participates in and even creates

some of the events he reports in the course of collecting evidence. . . . It

therefore appears that Martinez recorded his comments not as an objective

observer, but as a law enforcement officer, as a lay witness, and as an expert

witness cataloging evidence and opinions for use in [appellant's] prosecution. (4)

Put bluntly, "Martinez's narrative is the functional equivalent of a police offense report[.]" (5)

We granted the State's petition for review to decide this important issue of state

evidentiary law which, we understand, has arisen in several other cases as well. (6)

II.

The hearsay doctrine, codified in Rules 801 and 802 of the Texas Rules of Evidence,

is designed to exclude out-of-court statements offered for the truth of the matter asserted that

pose any of the four "hearsay dangers" of faulty perception, faulty memory, accidental

miscommunciation, or insincerity. (7) The numerous exceptions to the hearsay rule set out in

Rules 803 and 804 (8) are based upon the rationale that some hearsay statements contain such

strong independent, circumstantial guarantees of trustworthiness that the risk of the four

hearsay dangers is minimal while the probative value of such evidence is high. (9) The twenty-four hearsay exceptions listed in Texas Rule 803 may be roughly categorized into (1)

unreflective statements, (2) reliable documents, and (3) reputation evidence. The rationale for

all of the exceptions is that, over time, experience has shown that these types of statements are

generally reliable and trustworthy.

The first set of hearsay exceptions, unreflective statements, are "street corner"

utterances made by ordinary people before any thoughts of litigation have crystallized. (10) These

unreflective statements used to be called "res gestae," an imprecise Latin legalese term, (11)

because the speaker was not thinking about the legal consequences of his statements. In most

instances, the speaker was not thinking at all; the statement was made without any reflection,

thought process, or motive to fabricate or exaggerate. (12)

One of those "unreflective statements" exceptions to the hearsay rule is defined in Rule

803(1), the present sense impression:

A statement describing or explaining an event or condition made while the

declarant was perceiving the event or condition, or immediately thereafter. (13)

Statements that qualify under this exception are not excluded by the hearsay rule, even though

the declarant is available. (14)

Texas was the first jurisdiction to recognize this exception by name, (15) and its leading

case, Houston Oxygen Co. v. Davis , (16) is cited in the advisory committee's note to Federal

Rule 803(1). (17) The facts in that case are typical of those that support the exception. At trial,

the passenger of a car going down the highway testified that he saw another car pass theirs

going "sixty to sixty-five miles" an hour and that it was "bouncing up and down in the back and

zig zagging." (18) The passenger then testified that the driver of the car turned to him and said that

"they must have been drunk, that we would find them somewhere on the road wrecked if they

kept that rate of speed up." (19) Sure enough, five miles down the road the speeding car hit

another vehicle and caused the plaintiff's injuries. The Texas Supreme Court held that the

passenger's recitation of what the driver said to him at the time the speeding car passed them

was admissible as a present sense impression because "[i]t is sufficiently spontaneous to save

it from the suspicion of being manufactured evidence. There was no time for a calculated

statement." (20)

The rationale for the exception is that the contemporaneity of the statement with the

event that it describes eliminates all danger of faulty memory and virtually all danger of

insincerity. This Court has previously explained that rationale:

If a person observes some situation or happening which is not at all startling or

shocking in its nature, nor actually producing excitement in the observer, the

observer may yet have occasion to comment on what he sees (or learns from

other senses) at the very time that he is receiving the impression. Such a

comment, as to a situation then before the declarant, does not have the safeguard

of impulse, emotion, or excitement, but there are other safeguards. In the first

place, the report at the moment of the thing then seen, heard, etc., is safe from

any error from defect of memory of the declarant. Secondly, there is little or

no time for calculated misstatement, and thirdly, the statement will usually be

made to another (the witness who reports it) who would have equal opportunities

to observe and hence to check a misstatement. Consequently, it is believed that

such comments, strictly limited to reports of present sense-impressions, have

such exceptional reliability as to warrant their inclusion within the hearsay

exception for Spontaneous Declarations. (21)

The rule is predicated on the notion that "the utterance is a reflex product of immediate

sensual impressions, unaided by retrospective mental processes." (22) It is "instinctive, rather

than deliberate." (23) If the declarant has had time to reflect upon the event and the conditions he

observed, this lack of contemporaneity diminishes the reliability of the statements and renders

them inadmissible under the rule. (24)

Once reflective narratives, calculated statements, deliberate opinions, conclusions, or

conscious "thinking-it-through" statements enter the picture, the present sense impression

exception no longer allows their admission. (25) "Thinking about it" destroys the unreflective

nature required of a present sense impression. (26)

The State's first ground for review claims that the court of appeals in this case held that

Rule 803(8)(B), which explicitly excludes investigative reports by law enforcement from the

public records exception to the hearsay rule, "trumps" Rule 803(1) and disallows any out-of-court factual observations by police officers. The court of appeals did not say this. Of course

police officers, like the rest of humanity, may make spontaneous, unreflective,

contemporaneous present sense impression statements that qualify for admission under Rule

803(1). (27) But the court of appeals appropriately looked to the rationale for excluding law

enforcement reports under Rule 803(8)(B) by analogy.

Both the federal and Texas hearsay rules have always excluded the crime-scene or

investigation observations of law enforcement officers because their factual observations,

opinions, and narrations are made while the officer is "engaged in the often competitive

enterprise of ferreting out crime." (28) Rule 803(8)(B) expressly excludes "[r]ecords, reports,

statements, or data compilations . . . setting forth . . . matters observed by police officers and

other law enforcement personnel" in a criminal case. (29) The reason for this exclusion is the

inherently adversarial nature of any on-the-scene or post hoc investigation of a criminal

suspect. (30) Congress explained the rationale for the rule excluding factual observations by

investigating police officers from the public records exception to the hearsay rule:

Ostensibly, the reason for this exclusion is that observations by police officers

at the scene of the crime or the apprehension of the defendant are not as reliable

as observations by public officials in other cases because of the adversarial

nature of the confrontation between the police and the defendant in criminal

cases. (31)

Although Rule 803(8)(B) does not "trump" Rule 803(1), the basis for exclusion of

police reports and investigative recordings is exactly the same under both rules. The recorded

factual observations made by police officers investigating a suspected crime are not the type

of "non-reflective" street-corner statements of objective observers that the present sense

impression exception is designed to allow. (32) Courts admit present sense impression

statements precisely because they are non-narrative, off-hand comments made without any

thought of potential litigation by a neutral and detached observer without any motive to

fabricate, falsify, or otherwise exaggerate his observations. (33)

Conversely, on-the-scene observations and narrations of a police officer conducting

a roadside investigation into a suspected DWI offense are fraught with the thought of a future

prosecution: the police officer is gathering evidence to use in deciding whether to arrest and

charge someone with a crime. (34) Calculation and criminal litigation shimmer in the air; the

officer is gathering evidence, he is not making an off-hand, non-reflective observation about

the world as it passes by. (35) Similarly, factual observations, narrations, opinions, and

conclusions made by a citizen or bystander that might be intended by the declarant to be made

with an eye toward future litigation or evidentiary use are inadmissible under the rule. (36)

III.

In this case, Trooper Martinez turned on his patrol-car video camera and microphone

even before he detained appellant. He did this to accurately record his investigation and

preserve that interaction for possible trial. (37) He continuously referred to appellant as "the

Subject"- the subject of his investigation. He made four separate trips back to his patrol car

for the specific purposes of narrating what he had seen, smelled, and heard during his

investigatory stop. He offered his opinions and conclusions about what his investigation of

appellant had revealed. He narrated his impressions of how appellant had performed on various

investigatory field tests and then announced his conclusion: "Subject is going to be placed

under arrest for DWI." The entire tape-recorded narrative is, as the court of appeals concluded,

a speaking offense report. (38)

Throughout this incident, Trooper Martinez was professionally and politely "engaged

in the competitive enterprise of ferreting out crime." (39) One applauds him for that worthy

endeavor, but the adversarial nature of this on-the-scene investigation of a potential crime is

entirely at odds with the unreflective, instinctive comments of a "street-corner" speaker who

was not thinking about the legal consequences of his statements.

The State argues that "[h]earsay may be admissible under one hearsay exception even

if it is inadmissible under another hearsay exception." (40) That is correct, just as Justice Yates

concluded in her concurring opinion in this case. (41) Here, however, the rationale for excluding

Trooper Martinez's recorded oral narrative of his on-the-scene investigation as a present sense

impression under Rule 803(1) is precisely the same as the rationale for excluding that

evidence under Rule 803(8)(B): the presumed unreliability of law enforcement observations

in an adversarial, investigative setting. Thus, Rule 803(1) cannot be used "as a 'back door' to

admit evidence explicitly inadmissible under Rule 803(8)(B)." (42) The State relies upon

several out-of-state cases for the proposition that law enforcement narrative observations may

be admissible under the present sense impression exception to the hearsay rule.

In one case, Utah v. Blubaugh , (43) the appellate court held that a video recording of the

murder defendant's "messy home" was irrelevant and inadmissible, but harmless error, while

the officer's audio description of that "messy home" was not objected-to at trial. In dicta, the

reviewing court suggested that it was admissible as a present sense impression. (44) These might

appear to be contradictory holdings, but the Utah court did not elaborate on its reasoning in the

one-paragraph discussion. Nor does it appear that the aural recording was anything more than

a description of the defendant's home. In any event, we agree with the Houston Court of

Appeals that the issue of the admissibility of a recording of the factual observations of a law

enforcement agent made during an adversarial investigation was not raised in that case. (45)

The State also cites United States v. Rideout , (46) a vacated and unpublished opinion from

the Fourth Circuit in which the appellate court noted that the defendant's "blanket objection"

to the audio portion of a videotaped recording showing a drug-infested neighborhood

(described as "an open air crack market") did not preserve any error in its admission. (47) But the

officer in Rideout was not focused upon the investigation of any particular person. Apparently,

the videotape was simply a visual and audio recording of the appearance of a neighborhood,

much like a TV newscast showing and describing the destruction of a hurricane. As with

Blubaugh , we conclude that the question of whether a police office's narrative descriptions

of his factual observations in an adversarial investigation was neither present nor raised in

Rideout.

The State relies upon Ohio v. Penland , (48) a case that appropriately concluded that a

radioed recording by an officer in hot pursuit of a fleeing suspect was admissible as a present

sense impression. (49) The court stated that the officer

while pursuing the appellant, transmitted over his radio a description of the

appellant, the appellant's possession and disposal of the gun, and his

apprehension. Each of the taped statements from that radio transmission

described an event or condition perceived by the officer, either as he perceived

it or immediately thereafter. The circumstances surrounding the officer's

transmission of the statements, especially the perilous nature of the officer's

pursuit of the appellant, supply sufficient indicia of the statements'

trustworthiness. (50)

This scenario-the description of a chase while it is occurring, transmitted to his dispatcher-is

precisely the sort of unreflective, uncalculated, non-testimonial "street corner" statement that

is admissible under Rule 803(1), even when made by a law enforcement officer. (51) Trooper

Martinez, unlike the pursuing officer in Penland , calmly walked back and forth from his patrol

car to the suspect, and he carefully and deliberately narrated the results of his DWI field tests

and investigation. Trooper Martinez's recorded statements are "testimonial" and reflective in

nature; they are the type of statements that are made for evidentiary use in a future criminal

proceeding. (52)

In sum, most of the statements made by Trooper Martinez on the videotape constituted

a calculated narrative in an adversarial, investigative setting. (53) These particular statements

may be entirely reliable ones, but the setting is one that human experience and the law

recognizes is brimming with the potential for exaggeration or misstatement.

We therefore agree with the court of appeals which had held that Trooper Martinez's

recorded investigation narrative did not qualify for admission as a present sense impression

under Rule 803(1). At trial, Trooper Martinez may testify to exactly what he saw and heard

during his investigative detention of appellant, and his words might be the very same as those

he used during his on-the-scene narrative, but they must be given under oath and subject to

cross-examination.

We affirm the judgment of the court of appeals.

Delivered: January 16, 2008

Publish

1. We granted the State's two grounds for review:

The court of appeals erred in holding that the hearsay exception dealing with police offense

reports trumped the hearsay exception dealing with present sense impressions.

The court of appeals erred in holding that the audio portion of the DWI traffic stop videotape

did not constitute present sense impressions.

2.

Fischer v. State , 207 S.W.3d 846, 848 (Tex. App.-Houston [14 th Dist.] 2006) ("We hold

that a law enforcement officer may not avoid the restrictions on the evidentiary use of an offense report

by simply dictating the substance of that report.").

3. Tex. R. Evid. 803(1).

4.

Fischer , 207 S.W.3d at 859 .

5.

Id.

6.

See id. at 848 n.1 (noting that similar issues have arisen "in this and other courts," but that the

merits of the question of contemporaneously recording an officer's factual observations during his

criminal investigation of a suspect had "never been fully addressed"); see also Evans v. State , No. 14-05-00332-CR, 2006 Tex. App. LEXIS 5027 (Tex. App.- Houston [14 th Dist.] June 13, 2006, pet.

ref'd) (not designated for publication) (concluding that Trooper Martinez's narrative of his on-the-scene

factual observations of a DWI suspect was cumulative and thus any error was harmless); Thompson v.

State , No. 12-03-00014-CR, 2003 Tex. App. LEXIS 10088 (Tex. App.-Tyler Nov. 26, 2003, pet.

ref'd) (not designated for publication) (officer's contemporaneously recorded, patrol-car videotaped

statements concerning driver's actions were hearsay because they were factual "matters observed by a

police officer in a criminal case"; "the trial court erred in admitting [the officer's] commentary on the

audio portion of the videotape recorded while following" the defendant, but error was harmless).

7.

See Olin G. Wellborn III, The Definition of Hearsay in the Federal Rules of Evidence , 61

Tex. L.Rev. 49, 52-53 (1982); Edmund M. Morgan , Hearsay Dangers and the Application of the

Hearsay Concept , 62 Harv. L. Rev. 177 , 185-88 (1948); Laurence H. Tribe, Triangulating

Hearsay , 87 Harv. L. Rev. 957 , 958-61 (1974).

8. Additional exemptions from the operation of the hearsay rule are set out in Rule 801 which

simply defines those matters-such as party admissions, prior consistent statements, etc.- out of the rule

itself.

9.

See 5 John H. Wigmore, Evidence in Trials at Common Law § 1420-1423, at 251-55

(Chadbourn rev. 1974) (discussing the exceptions to the hearsay rule and noting that they have been

generally based upon some combination of the unavailability of the declarant, the reliability of the

declaration, or the presumed inefficiency of any possible cross-examination).

10. This is like the rationale used by the United States Supreme Court in

Crawford v.

Washington , 541 U.S. 36, 61-62 (2004), and Davis v. Washington , 547 U.S. 813 , ___, 126 S. Ct.

2266, 2273-74 (2006), to distinguish street-corner "nontestimonial" statements to law enforcement

officers from litigation-oriented "testimonial" statements. Police interrogation statements relating to past

events relevant to a criminal prosecution are "testimonial statements" for purposes of the Confrontation

Clause, in part because of their adversarial nature and, in part, because the reasonable declarant would

recognize that the statements could be used in a future criminal prosecution. See Davis 547 U.S. at

___ , 126 S. Ct. at 2273-74 (discussing when statements made to law enforcement personnel during a

911 call or at a crime scene are "testimonial" and thus subject to the requirements of the Sixth

Amendment's Confrontation Clause ; concluding that "[s]tatements are nontestimonial when made in the

course of police interrogation under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when

the circumstances objectively indicate that there is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past events potentially relevant to later criminal

prosecution.").

When the police are engaged in the competitive enterprise of detecting crime, investigating

crime, and gathering evidence for criminal prosecution, statements gathered during their interrogations

are testimonial "as a matter of law." Brooks v. State , 132 S.W.3d 702, 707 (Tex. App.-Dallas 2004,

pet. ref'd).

11. The Latin term "res gestae" literally translates as "things done."

See Charles E. Moylan, Jr.,

Res Gestae, Or Why Is that Event Speaking and What Is It Doing in this Courtroom? , 63

A.B.A.J. 968 (1977); 1A Roy R. Ray, Texas Practice: Texas Law of Evidence Civil and

Criminal § 911, at 144-45 (3d ed. 1980) (use of term "res gestae" creates confusion); G.T. Banks,

Comment, Res Gestae in the Texas Court of Criminal Appeals: A Method to Their Madness?, 50

Tex. L. Rev. 119 , 119 (1971) (noting that most American courts had "use[d] the term to some extent,

but the Texas Court of Criminal Appeals seems to have gone the furthest in distilling chaos from

simplicity"); Michael E. Bornhouser, Comment, Res Gestae: A Synonym for Confusion , 20 Baylor

L. Rev. 229 , 229 (1968) (the term res gestae "has been used to mean so many things that it is

impossible to know exactly what it does mean").

12.

See Davis , 547 U.S. at __ , 126 S.Ct. at 2276-79 (911 caller seeking immediate assistance

during an emergency and describing events as they were occurring was making non-testimonial

utterances, while a different domestic-violence victim, who was no longer in the midst of an emergency

and was responding to police interrogation concerning recent past events, had time to reflect upon her

answers, thus her responses were "testimonial"); compare United States v. Manfre , 368 F.3d 832,

840 (8 th Cir. 2004) (noting that declarant's description of a recent conversation with a third person was

not an unreflective present sense impression because the "opportunity for strategic modification

undercuts the reliability that spontaneity insures" as the declarant had to first drive or walk to meet the

third person).

13. Tex. R. Evid. 803(1).

14. Tex. R. Evid. 803.

15. 1A Roy R. Ray,

supra , note 11, § 916, at 159-60 (citing Houston Oxygen Co. and noting

that "the report at the moment of the thing then seen, heard, etc. is safe from any error from defect of

memory of the declarant. Secondly, there is little or no time for calculated misstatement").

16. 139 Tex. 1 , 161 S.W.2d 474 (1942).

17. Fed. R. Evid. 803(1) advisory committee's note.

18. 139 Tex. at 5 , 161 S.W.2d at 476 .

19.

Id.

20.

Id. at 6 , 161 S.W.2d at 476 .

21.

Rabbani v. State , 847 S.W.2d 555, 560 (Tex. Crim. App. 1992) (quoting 1A R. Ray,

supra , § 916, at 158-59).

22.

Commonwealth v. Farquharson , 354 A.2d 545, 554 (Pa. 1976).

23.

Commonwealth v. Coleman , 326 A.2d 387, 389 (Pa. 1974); see also United States v.

Brewer , 36 F.3d 266, 272 (2d Cir. 1994) (quoting treatise stating that the underlying rationale for the

exception is that "statements of present sense impression are considered reliable because the

immediacy eliminates the concern for lack of memory and precludes time for intentional deception.")

(quoting 4 Louisell, Federal Evidence § 438 (1980)); United States v. Peacock , 654 F.2d 339,

350 (5 th Cir. 1981) (allowing testimony under Fed. R. Evid. 803(1) when the declarant described a

conversation to his wife "immediately following the telephone conversation" because there was "no

time" for the declarant to "consciously manipulate the truth").

24.

See, e.g., Hallums v. United States , 841 A.2d 1270, 1277 (D.C. 2004) (recognizing the

exception, but warning that "care must be taken to ensure that this exception is not used to admit

statements that circumstances reveal were not truly spontaneous, but instead involved conscious

reflection or recall from memory"); Illinois Central R.R. Co. v. Lowery , 63 So. 952, 953 (Ala. 1913)

(noting that the "mere fact that a declaration is contemporaneous with the transaction in issue, and even

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

declaration must be instinctive rather than deliberative-in short, the reflex product of immediate sensual

impressions, unaided by retrospective mental action.").

25.

See Houston Oxygen Co., 139 Tex. at 6 , 161 S.W.2d at 476 (noting that there was "no

time for a calculated statement"); Anderson v. State , 15 S.W.3d 177, 183-84 (Tex. App.- Texarkana

2000, no pet.) (disallowing declarant's statements as a present sense impression because they "express

an opinion or conclusion"); Beauchamp v. State , 870 S.W.2d 649, 652 (Tex. App.-El Paso 1994,

pet. ref'd) ("We do not believe that a statement of opinion about a condition or event, as opposed to a

statement of description or explanation about something observed or otherwise sensed, qualifies as a

present sense impression."); see also Cody v. Harris , 409 F.3d 853, 860 (7 th Cir. 2005) (noting that

one of the criteria for a present sense impression is that it describes "an event or condition without

calculated narration"); United States v. Mitchell , 145 F.3d 572, 576 (3d Cir. 1998) (citing

Weinstein's Evidence and McCormick's Evience in stating that "the declaration must be an

explanation or description of the event rather than a narration"); United States v. DesAnges , 921 F.

Supp. 349 , 359 n.8 (W.D. Va. 1996) (stating the present sense impressions are "highly trustworthy"

because "there is little or no time for calculated misstatement").

26.

See United States v. Guevara , 277 F.3d 111, 127 (2d Cir. 2001) (affirming trial court's

exclusion of conversations recorded by police officer as a present sense impression "because they were

conclusions based upon information [the declarant] had processed rather than contemporaneous or

spontaneous statements that were inherently trustworthy"); United States v. Hamilton , 948 F. Supp.

635, 639 (W.D. Ky. 1996) ("With reflection, some reliability, which goes to the very essence of the

present sense impression hearsay exception, is lost.").

27. For example, suppose Officer Obie is quietly patrolling Congress Avenue when he hears his

dispatcher say, "A bank robber just left Frost Bank in a red Hummer with a black flag on the back

window." A moment later the dispatcher hears Officer Obie: "Oh my gosh! A red Hummer with a

black flag just passed me going 60 m.p.h." That statement would undoubtedly qualify as either a

present sense impression or, depending upon the excitement in Officer Obie's voice, an excited

utterance under Tex. R. Evid. 803(2). That statement was an unreflective, unthinking, uncalculated

description of what he had just seen.

See, e.g., Green v. State , 876 S.W.2d 226, 228 (Tex.

App.-Beaumont 1994, no pet.) (officer's testimony that two witnesses shouted "The man in the brown

trench coat was shooting" as they were running from the direction in which shots were fired was

admissible under the rule; declarants were describing an event they had seen almost immediately before

encountering officer); see also United States v. Ruiz , 249 F.3d 643, 646 (7 th Cir. 2001) (upholding

admission of surveilling officer's contemporaneous description of defendant and his movements at the

back of apartment building via radio to his partner who could not see the defendant from his post at the

front of the apartment building); State v. Penland, 724 N.E.2d 841, 845-47 (Ohio Ct. App. 1998)

(police officer's statements to dispatcher as he was pursuing fleeing suspect on foot and describing the

suspect, his appearance, and his ultimate apprehension qualified as present sense impression statements

because "[t]he circumstances surrounding the officer's transmission of the statements, especially the

perilous nature of the officer's pursuit of the appellant, supply sufficient indicia of the statements'

trustworthiness."); Knudsen v. Director, North Dakota Dept. of Trans ., 530 N.W.2d 313, 317-18

(N.D. 1995) (in license-revocation hearing, testimony that patrol officer reported on his radio that he

"heard the accident take place" 100 yards away was admissible as his present sense impression).

28.

Johnson v. United States , 333 U.S. 10, 14 (1948).

29. Fed. R. Evid. 803(8)(B); Tex. R. Evid. 803(8)(B). Of course, Rule 803(8)(B) does not

necessarily apply to law-enforcement reports that are prepared in a non-adversarial setting, that are

unrelated to any specific litigation, and that record objective, neutral observations.

See Pondexter v.

State , 942 S.W.2d 577, 585 (Tex. Crim. App. 1996) ("We know that the reason for Federal Rule of

Evidence 803(8)(B) , after which the Texas rule was modeled, was the presumed unreliability of

observations that are made by officers at the scene of a crime," but stating that when police officer was

performing his ordinary, routine duties of recording the property that was taken in and out of the police

property room, his observations and notations should be presumed reliable; matters observed or

recorded by police officers are admissible under Rule 803(8)(B) if the observations are made and

recorded in a ministerial manner); McLeod v. State , 56 S.W.3d 704, 710 (Tex. App.-Houston [14 th

Dist.] 2001, no pet.) (noting that the information conveyed in a fingerprint card was made under a "duty

imposed by law as to which matters there was a duty to report," and that card contained only routine

observations, made in connection with the defendant's prior DUI conviction and should therefore be

presumed reliable under Rule 803(8)(B)); see generally, United States v. Quezada , 754 F.2d 1190,

1193-94 (5 th Cir. 1985) (admitting a deportation warrant under Rule and noting that the recording of

unambiguous factual matter was inherently reliable because it was merely the result of a ministerial

objective observation and had none of the subjective features of reports made in a more adversarial

setting, such as the investigation of a crime scene).

30.

See Pondexter , 942 S.W.2d at 585 (Rule 803(8)(B), which excludes factual matters

observed by police officers, applies where possible impairment of judgment is implicated, such as

observations made by officers at the scene of a crime); Cole v. State , 839 S.W.2d 798, 811-12 (Tex.

Crim. App. 1992) (op. on reh'g) (quoting the legislative history of Fed. R. Evid. 803(8)(B) which

based the exclusion of police reports on the fact that they are created in an adversarial setting: "'Police

reports, especially in criminal cases, tend to be one-sided and self-serving. They are frequently

prepared for the use of prosecutors, who use such reports in deciding whether to prosecute.'");

United States v. Quezada , 754 F.2d 1190, 1193-94 (5 th Cir. 1985) (stating that the hearsay rule

excluding police offense reports "is based in part on the presumed unreliability of observations made by

law enforcement officials at the scene of a crime, or in the course of investigating a crime," and noting

that "a number of courts have drawn a distinction for purposes of Rule 803(8)(B) between law

enforcement reports prepared in a routine, non-adversarial setting, and those resulting from the arguably

more subjective endeavor of investigating a crime and evaluating the results of that investigation").

31.

Senate Report No. 1277, 93d Cong.2d Sess., reprinted in [1974] U.S. Code Cong. & Ad.

News 7051, 7064 (quoted in United States v. Pena-Gutierrez , 222 F.3d 1087 (9 th Cir. 2000); see

also Fed. R. Evid. 803, advisory committee's note (noting that the exclusionary language of Rule

803(8)(B) "is properly applied so as to exclude only those law enforcement reports that are subjective

and made under adversarial circumstances").

32.

See Commonwealth v. Farquharson , 354 A.2d 545, 554 (Pa. 1976) ("It must be certain

from the circumstances that the utterance is a reflex product of immediate sensual impressions, unaided

by retrospective mental processes."); Commonwealth v. Coleman , 326 A.2d 387, 389 (Pa. 1974)

(present sense impression is "instinctive, rather than deliberative"); compare United States v.

Hernandez-Rojas , 617 F.2d 533, 535 (9th Cir. 1980) (stating that "the subjective report made by a

law enforcement official in an on-the-scene investigation . . . lacks sufficient guarantees of

trustworthiness because [it is] made in an adversary setting [and is] likely to be used in litigation").

33.

See, e.g., Houston Oxygen Co. v. Davis , 139 Tex. 1, 6 , 161 S.W.2d 474, 476 (1942);

Cody v. Harris , 409 F.3d 853, 860 (7 th Cir. 2005) ("The three criteria for admission of a statement as

a present sense impression are: '(1) the statement must describe an event or condition without

calculated narration; (2) the speaker must have personally perceived the event or condition

described; and (3) the statement must have been made while the speaker was perceiving the event or

condition, or immediately thereafter'") (emphasis added); United States v. Mitchell , 145 F.3d 572,

576 (3 rd Cir. 1998).

34.

See Wilson v. State , 680 P.2d 1173, 1178 (Alaska Ct. App. 1984) (stating that the police

officer's dictated observations as he was following suspected DWI driver were not admissible under

hearsay rule; although the officer's comments were "arguably present sense impressions," the

statements were excludable because they "were, in effect, his report on the incident; as such, they did

not fit within any exceptions to the hearsay rule").

35.

See United States v. Woods, 301 F.3d 556, 562 (7 th Cir. 2002) ("A declarant who

deliberates about what to say or provides statements for a particular reason creates the possibility that

the statements are not contemporaneous, and, more likely, are calculated interpretations of events

rather than near simultaneous perceptions."); see also State v. Goodloe , No. 32860-7-II, 2005 Wash.

App. LEXIS 3048 , at *5-7 (Wash. Ct. App. Nov. 29, 2005) (not designated for publication) (police

officer's recorded statements to another officer concerning "controlled [drug] buy" were not admissible

under present sense impression exception to the hearsay rule; while the statements "satisfy many of the

elements of a present sense impression, they do not satisfy the most critical element: that the events

evoke the utterance. Here, they were part of a carefully planned investigation for the purpose of

gathering evidence against" the defendant); see generally, Davis v. Washington , 547 U.S. 813 , ___,

126 S.Ct. 2266, 2278-79 (2006) (distinguishing between "nontestimonial" cries for assistance in an

emergency and non-emergency "testimonial" statements about recent past events).

36.

See, e.g., Boyd v. City of Oakland , 458 F. Supp. 2d 1015, 1036-37 (D. Cal. 2006)

(noting, in civil-rights suit alleging a public police strip-search, that the nature of the plaintiff's statements

to his mother-who was also his lawyer-raised the possibility that he was "perhaps contemplating

litigation" and that "constitutes a motive to lie"; further, the "declaration shows that it was not a

statement made spontaneously and without reflection. Rather than being a burst of words describing

what he was presently perceiving or had perceived immediately beforehand, [plaintiff's] declaration

consists of a lengthy, detailed narrative account. The coherence and structure of this account shows

that [plaintiff] 'was reflecting on the event' rather than spontaneously reacting to a present sensory

experience").

37. This is a fine law enforcement policy, and an audio report may assist an officer as an

aide

memoire to refresh his recollection before testifying, just as a written offense report assists him in

recollecting the events that had occurred. But an offense report, in any form, is not admissible under

the hearsay rule; it is specifically barred by Rule 803(8)(B). Whether that offense report is written on

paper or recorded digitally, it is still an offense report that sets out "matters observed by police officers

and other law enforcement personnel."

38.

Fischer , 207 S.W.3d at 859 .

39.

Johnson v. United States , 333 U.S. 10, 14 (1948).

40. State's Brief at 7.

41.

Fischer , 207 S.W.3d at 861-62 (Yates, J., concurring) ("Generally, each hearsay exception

should be analyzed independently because 'evidence which is inadmissible under one hearsay exception

may often be admissible under another exception,'" but concluding that "the factors rendering hearsay

unreliable under Rule 803(8)(B) are relevant in assessing whether Martinez's statements constitute a

present sense impression.").

42.

Cole v. State , 839 S.W.2d 798, 811 (Tex. Crim. App. 1992) (op. on reh'g).

43. 904 P.2d 688 (Utah App. 1995).

44.

Id. at 700 .

45.

See Fischer , 207 S.W.3d at 854 (concluding that "the narrow issue before us was not

presented in Blubaugh , but rather, appears to have been waived").

46. 80 F. App'x 836, 843 (4

th Cir. 2003) (not designated for publication), vacated on other

grounds , 543 U.S. 1116 (2004).

47.

Id. at 843 (stating that Fed. R. Evid. 803(1) "permits the admission of hearsay when it

involves a statement 'describing or explaining an event or condition made while the declarant was

perceiving the event or condition, or immediately thereafter.' Here, [defendant] has given us no reason

to doubt that any narration heard by the jury fit within this rule. Accordingly, we find no error in the

denial of [defendant's] blanket objection.").

48. 724 N.E.2d 841 (Ohio Ct. App. 1998).

49.

Id. at 845-46 .

50.

Id.

51.

See supra , note 27.

52.

See Davis v. Washington , 547 U.S. 813 , ___, 126 S.Ct. 2266, 2278 (2006).

53.

See, e.g., Boyd v. City of Oakland , 458 F. Supp. 2d 1015, 1036-37 (D. Cal. 2006).