# Williams v. State

> Court of Appeals of Texas · March 4, 2010 · 307 S.W.3d 862

URL: https://www.frixlaw.com/law-library/cases/9621677

## Case

- **Full name:** Shannon WILLIAMS, Appellant, v. the STATE of Texas, State
- **Court:** Court of Appeals of Texas
- **Decided:** March 4, 2010
- **Citations:** 307 S.W.3d 862; 2010 Tex. App. LEXIS 1589; 2010 WL 745785
- **Precedential status:** Published
- **Opinion:** Dissent by Dauphinot
- **Judges:** Dauphinot, Walker, McCoy
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9621677

## How later opinions describe it (automated extraction)

- holding that “behavior consistent with intoxication” at the hospital was 9 some supporting evidence of intoxication

## Opinion text

*869 LEE ANN DAUPHINOT, Justice,
dissenting.
I write separately because I do not understand the record in the same way the majority understands it, and I find that record terribly disturbing. The majority accurately reports and relies on the testimony at the trial, but the testimony is contradicted by the video record of the actual events.
Patrol Officer Nicholas Brown pulled Appellant Shannon Williams over and then called for the officer who was trained to investigate suspected offenses of driving while intoxicated (DWI), even though he was trained to conduct the horizontal gaze nystagmus (HGN) test. Officer Brown’s car either had no microphone or had the microphone turned off. He testified,
Q. Now, officers do have mikes [sic], don’t they?
A. Some of the vehicles are equiped [sic] with them, some aren’t.
Q. And this vehicle is not equiped [sic] with a mike [sic]?
A. I believe not. I don’t recall. If it did have one, I would have been wearing it.
Q. So if there was a mike [sic], we could have heard his voice, correct?
A. Yes, sir.” 1
Officer Brown testified that there was a video camera, but he “ran out of tape” before the film could capture Appellant’s ability to walk and to exhibit whether he had lost the normal use of his mental or physical faculties at the time he was operating the motor vehicle. Officer D. Evans, the second officer, believed that she had turned her car’s microphone off. She was mistaken. The regularity with which the units working the Camp Bowie area have no dash cameras or have malfunctioning equipment or officers who cannot remember whether they did not have the equipment or simply chose not to use it is, indeed, disturbing.
Officer Brown of the Fort Worth Police Department was on duty in approximately the 9100 block of Camp Bowie Boulevard at approximately 1:18 a.m. on October 19, 2007. He testified that he saw a blue pickup driven by Appellant and traveling west on Camp Bowie run a red light at the intersection of Camp Bowie and Norman-dale. Officer Brown pulled his patrol vehicle behind the pickup and began to follow it. He said that he saw Appellant change lanes twice without signaling. Officer Brown then activated his dash camera. The video shows the blue pickup pull on to the access road of Loop 820 and then pull over to the side of the road without incident. Officer Brown testified that he smelled the odor of alcohol and that Appellant had bloodshot eyes and slurred speech. Although there is no sound on the videotape, Officer Brown testified that in response to his questions, Appellant said that he had consumed three or four beers. Officer Brown testified that he had asked Appellant for his driver’s license and insurance and that Appellant had no problem providing the driver’s license. Officer Brown had no independent recollection of Appellant’s providing the insurance information.
Officer Brown called for a DWI unit and spoke with Officer Evans, who told him that she was some distance away and asked him to go ahead and perform the field sobriety tests. At some point, while Officer Brown was in his unit and Appellant was still in his pickup, the video recording in Officer Brown’s car stopped.
Officer Brown denied that Appellant had any particular problem getting out of the *870 pickup or that he had to hold on to the pickup to maintain his balance. He did claim that Appellant at some point was forced to lean against the pickup to maintain his balance. Again, these actions are not reflected on the videotape because it had already stopped. According to his testimony, Officer Brown administered the HGN test, concluding that Appellant had alcohol in his system and scored six “clues” of intoxication. Officer Brown testified that at that point, Appellant said that he was not going to perform any further tests and put his hands behind his back to be handcuffed.
Appellant testified that he had been at a birthday party for a short time, approximately two hours, and had eaten some sushi that had made him sick. He testified that he told Officer Brown that he was feeling sick and could not continue the field sobriety tests. Of course, because the video equipment in Officer Brown’s car had stopped, the evidence at this point was a swearing match. Appellant also testified that as he was driving west on Camp Bowie, Officer Brown pulled out of a parking lot and followed very closely behind him. Assuming that Officer Brown wanted to pass him, Appellant pulled over into a different lane. When Officer Brown did not make an attempt to pass him, Appellant pulled back into his lane in preparation for entering the access road for Loop 820 because he was intending to return home by way of the loop. The videotape does reveal that Appellant did not signal any lane changes. There were no vehicles around, other than Officer Brown’s, and there was no testimony or other evidence that Appellant could not change lanes safely without signaling.
Officer Brown testified that he had pulled Appellant over because of his running a red light and his erratic driving. Appellant admitted that he ran a red light, and he does not challenge the original stop. But the limited amount of driving recorded on the videotape is neither erratic nor unsafe and in no way indicative of intoxication.
Officer Evans testified that she arrived at the scene of the traffic stop at 1:36 a.m. She took custody of Appellant and placed him in the back of her patrol car. Officer Evans testified that she smelled the odor of alcohol on Appellant, that his eyes were bloodshot, and that his speech was slurred. She also testified that he passed out in the back seat of her vehicle. She further testified that the microphone in her car was not on.
I have closely reviewed the videotape from Officer Evans’s car and find that, indeed, the microphone was turned on. One can hear Appellant speaking. His speech is not slurred. Indeed, his speech is clear, cogent, and coherent. He asks the officers to retrieve his billfold from his truck. He explains that he owns his own business and needs the billfold. He describes the billfold as being brown and looking like a large checkbook and tells the officers how much he appreciates their getting it for him. He asks what is going to happen to him and explains that he has never been in any kind of trouble before. He tells the officers that his handcuffs are too tight and are making his hands numb. He asks if they will cuff his hands in front. They, of course, refuse. We see him lie down on the back seat, but he has not passed out. Indeed, he continues to speak. He asks what is going to happen to him and what the next procedures will be. He asks if he can get someone to come get it, presumably his truck in the context of the events. After a short time, he thanks Officer Evans for turning on the air for him. There is a period of silence while someone drives the patrol car. Officer Evans does not speak to Appellant, and he *871 neither speaks nor sings to her. There is no sound of snoring, and Appellant is not visible. Neither Officer Evans nor the majority suggests that she has passed out because she does not speak and is not visible on the tape.
As the ear pulls into the sally port, Appellant says that he feels very sick and asks the officer to stop because he feels that he is going to vomit. His speech is not slurred, nor does he sound inebriated. He then asks the officer to please let him out of the car because he feels that he is going to vomit. Nowhere is Officer Evans’s testimony that Appellant passed out or that his speech was slurred supported by what we see or hear on the videotape. In fact, her testimony is contradicted by what we see and hear.
When Officer Evans pulled into the sally port at the jail, she opened the car’s back door for Appellant, and he was allowed to vomit outside the police car. Nothing in the record suggests that Appellant was given anything to drink or anything with which to rinse the vomit out of his mouth before he submitted to the intoxilyzer test.
Officer Evans took Appellant inside the jail to the intoxilyzer room. The events in the intoxilyzer room were videotaped. Again, the difference between the officer’s description of Appellant’s performance on the field sobriety tests and the performance revealed on the videotape suggests that we are talking about totally different cases. At trial, Officer Evans described Appellant as unable to stand without swaying or holding on to the wall and unable to properly perform the field sobriety tests. The videotape reveals that Appellant swayed less than the officer and that Appellant performed substantially better than she did on the field sobriety tests.
At trial, Officer Evans stated that Appellant was unable to maintain a stance with one foot in front of the other, but the videotape shows that she took an inordinately long time explaining the test, repeating herself, while instructing him to stand in a very unnatural position that he eventually abandoned while he waited for her again to repeat the instructions. When Appellant did perform the test, he performed quite well. The -video also demonstrates that his speech is not slurred, although he does appear quite tired.
Officer Evans testified that Appellant had a slow response to instructions, justifying her conclusions that he had lost the normal use of his mental faculties. The video shows that every time he attempted to respond to her instructions, she told him to wait because she was not finished instructing him. Appellant did tell Officer Evans that he felt claustrophobic. Officer Evans opened the door to the intoxilyzer room.
Appellant agreed to take a breath test, and the test revealed a blood alcohol concentration of 0.097 at 2:46 a.m., approximately ninety minutes after Appellant was pulled over. Appellant was ultimately charged with DWI by not having the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body or by having an alcohol concentration of at least 0.08.
The majority relies on the officers’ testimony to the exclusion of the contradictory evidence of the video record. While determinations of credibility are the exclusive province of the trier of fact, 2 an objective record of the actual events that contradicts the testimony must mean that the record *872 does not support the trial court’s determination of facts.
Repeatedly, we are asked to review records of DWI stops during which there is no audio or video record of the event. In Cendejas-Fernandez v. State, concerning another DWI stop in the 9100 block of Camp Bowie, the officer could not remember whether he had failed to turn on his camera or whether he had no camera. 3 In Helm v. State, the officer provided neither audio nor video record of the detention. 4 And so it goes on Camp Bowie in Fort Worth.
Why do I believe there should be audio or audio and video record of the DWI stops? Because the law requires, and did so at the time of this stop, either an audio or audio and video record or the filing of a racial profiling report for each stop. 5 The City of Fort Worth has conscientiously provided the means for complying with this law. Since at least 2004, Fort Worth has been providing in-car video cameras to police officers:
The Police Department currently has cameras in more than 240 marked Police vehicles. These include all Front Line Patrol (Beat) Vehicles, Traffic Division DWI unit, Commercial Vehicle Enforcement unit, and twelve vehicles assigned to Zero Tolerance Teams. The number of cameras nearly doubled during FY2004 due to a State grant that provided 99 additional units. This program will continue equipping vehicles requiring in-car video cameras increasing from 181 to 249 Front Line Patrol (Beat) Vehicles in FY2008-2009.
The Police Department will begin equipping Digital In-Car Video systems in FY09. The quantity of the Digital systems will be limited while tests and evaluations of various models are conducted. This will allow the department to ensure that the equipment meets the requirements of the Police Department, as well as the Prosecutors [sic] Office, maximizing the ability to prosecute cases using recorded video evidence. 6
I cannot agree with the majority that there is no conflict between the testimonial evidence and the record of the actual events. An appellate court should give no weight to testimony that is disproved by the objective record of the actual events. And I believe that the majority should address the issue of an officer’s intentionally disabling the audio recorder and testifying directly contrary to the audio record.
At some point, courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for. If the law requires recording to qualify for the exception to filing racial profiling reports, 7 then is the officer not obligated to make sure that there is tape in a traditional *873 video camera or that a digital camera is activated? When the actual recording conflicts with the officer’s testimony, the defendant’s testimony, or another witness’s testimony, a court cannot pretend that the emperor is wearing new clothes just because someone testifies that he is.
The issue before this court is whether Appellant was intoxicated at the time he operated a vehicle in a public place, not whether the alcohol concentration in his body was above .08 ninety minutes after he stopped driving. Both officers had microphones and a video camera, yet we have no video record of Appellant’s control of his physical faculties at the scene. Given Officer Evans’s testimony that her microphone was off, we are fortunate to have an audio record. That accidental record reveals no indication of inebriation on Appellant’s part. I must respectfully disagree with the majority that lying down is evidence of intoxication, especially in light of the fact that when Appellant was sitting up against the back of the seat, he had indicated that having his hands handcuffed behind him was painful and asked to be handcuffed in front. Further, despite Officer Evans’s testimony that a person’s going to sleep because he is tired is, in her opinion, the same thing as passing out, I cannot agree that lying down is the same thing as passing out. The two are quite different.
There is no record of the alcohol concentration in Appellant’s body at the time he was driving. The only record of the alcohol concentration in Appellant’s body was made more than an hour and a half after he stopped driving, and that record was made after he had vomited. 8 It is common knowledge that even burping can invalidate intoxilyzer test results. 9 Officer Evans testified that if a person burped or vomited during the fifteen-minute observation period before beginning the intoxilyzer test, the observation period had to begin again, although she did not know why. I would submit that the observation properly begins again only if no residue of vomit is left in the mouth. As long as there is residue of the vomit, the testing cannot be said to be wholly reliable. And the majority may be correct that if a valid test reveals a breath alcohol level of .09, that is some evidence there was alcohol in the body when the subject was driving. But, realistically, if, at the time the test is *874 performed, there is no evidence to show whether the body was in the absorption mode or the dissipation mode, there is no way to tell whether the alcohol concentration in the body was higher, lower, or the same when Appellant was operating his truck. In this case, there is the additional problem of Appellant’s having vomited and no evidence that the vomit residue had been cleared from his mouth when he breathed into the tube of the intoxilyzer. As the majority points out, no one attempted to prove Appellant’s blood alcohol level at the time he was operating the vehicle.
The issue is not whether Appellant could properly be cited for a traffic violation or whether there was some evidence that would allow a jury to suspect that he had been drinking, but whether the State proved beyond a reasonable doubt that he was intoxicated when he operated the vehicle. The State did not.
For these reasons, I cannot join the majority’s well-written opinion and must respectfully dissent.
. RR Vol. II at 29-30.
. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006).
. 306 S.W.3d 354, 362 (Tex.App.-Fort Worth, 2010, no pet. h.) (Dauphinot, J., dissenting).
. 295 S.W.3d 780, 785 (Tex.App.-Fort Worth 2009, no pet.) (Dauphinot, J., dissenting). The reporter's record in Helm contains the officer’s testimony indicating that he was at the intersection of Marquita and Camp Bowie when he observed Helm’s driving.
. See Tex.Code Crim. Proc. Ann. art. -2.133— . 135 (Vernon Supp.2009).
. Fort Worth Crime Control and Prevention District Plan Executive Summary FY 2010, IV. Police Department Enhancements, K. In-Car Video Cameras 10 (April 17, 2009), http:// www.fortworthgov.org/ council_packe(/ren-der_file.asp?filename= 11505/ CCPD + Executive + Summary + CCPD + Budget + FY 10.doc.
. See Tex.Code Crim. Proc. Ann. art. 2.135.
. See 37 Tex. Admin. Code § 19.4 .(c) (2006) (Tex. Dep’t of Safety, Breath Alcohol Testing Regs.) ("All breath alcohol testing techniques, in order to be approved, shall meet, but not be limited to, the following: (1) a period during which an operator is required to remain in the presence of the subject. An operator shall remain in the presence of the subject at least 15 minutes before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth.”); Heeth v. State, No. 01-94-00975-CR, 1997 WL 212268 , at *3 (Tex.App.Houston May 1, 1997, no pet.) (not designated for publication) ("In the present case, Deputy Whitley explained that the state requires officers to observe a DWI arrestee for fifteen minutes prior to administering the intoxilyzer test to make sure that he consumes no more alcohol, introduces no other substances into his mouth, and does not vomit. All of these acts would affect the results of the intoxilyzer test.”).
. See, e.g,, Pastrano v. State, No. 04-95-00268-CR, 1996 WL 382983 , at *1 (Tex.App.San Antonio July 10, 1996, no pet.) (not designated for publication) ("The intoxilyzer expert testified that a burp which brought up liquid could affect the results although a burp which only brought up vapor from the stomach would have no effect.”); Hujar v. State, No. 01-94-00024-CR, 1995 WL 431503 , at *4 (Tex.App.-Houston [1st Dist.] July 20, 1995, no pet.) (not designated for publication) ("Officer Jones testified that if a subject belched or burped before a test it could bring up residual alcohol from the stomach and cause a falsely high reading. He testified that if a subject burps, he must start the 15-minute waiting period over.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9621677. Public record. Not legal advice.