EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, March 6, 2009

Who Watches The Watchman?: Court Of Appeals Of Texas Finds No Violation Of Right To Present A Defense In DUI Appeal Revolving Around Excluded Videotape

The opinion of the Court of Appeals of Texas in Peavey v. State, 248 S.W.3d 455 (Tex.App.-Austin 2008), reveals that an appellant seeking to prove a violation of the right to present a defense must first establish that the evidence excluded was relevant.

In Peavey, during the "early morning hours" of July 29, 2005, Round Rock Police Officer Timothy Thompson observed an older model Chevrolet Suburban on the interstate "twice weave from one lane to another, and almost strike construction barrels where the roadway narrowed."  When Thompson activated his flashing overhead lights, the driver made no attempt to stop.  Other officers joined the chase, and Thompson began issuing verbal commands over his vehicle's public address system to the driver to stop, but there was still no response.

After approximately seven to ten miles of pursuit, the Suburban exited the interstate onto a frontage road, turned into a side street and pulled into a parking lot and stop.  Thompson ordered the driver, Markum Peavey, to get out of the Suburban.  As Peavey got out,

he stumbled and almost fell to the ground. He staggered as he walked backward. Despite the officer's repeated commands for [Peavey] to lie on the ground, [Peavey] seemed preoccupied with one of his boots or pants leg and kept reaching down towards his foot. The officers suspected that [Peavey] might have a weapon. [Peavey] argued with the officer about getting on the ground. [Peavey] said that he was trying to get his shoes off. When told that if he did not follow commands, he was going to be shot with a beanbag gun, [Peavey] replied, "Go ahead and shoot me. Kill me then." As the officers struggled to get the handcuffs on, [Peavey] continued to resist, and officer Hunter had to use pepper spray on [Peavey]. [Peavey]'s eyes were washed out with water and emergency medical services treated him.  [Peavey] was transported to the Round Rock jail facility where he refused a breath test. Officer Thompson administered a horizontal gaze nystagmus field sobriety test, but [Peavey] declined the other tests because of injuries to his leg or legs. Because [Peavey] had been pepper sprayed, he was interviewed by a medical officer before being placed in jail. Officers Thompson and Hunter both testified that [Peavey]'s speech was slurred, that he smelled of alcohol, and was intoxicated. It was established that, in the opinion of the officers, [Peavey] did not have control of his mental or physical faculties."

Peavey was subsequently convicted of felony driving a motor vehicle while intoxicated and evading arrest after the officers testified concerning these events at trial and a videotape of the events was introduced.  Part of Peavey's defense at trial, however, was that he was not voluntarily intoxicated.  Instead, according to Peavey, before the incident:

he worked "a half day" on July 28, 2005, supervising the construction of several different houses and at about 6:30 p.m., he drove to east Austin to pick up an employee, Gilbert Guerra, and take him to Leander where Guerra was to be a night watchman over construction supplies for six sites. Before reaching the designated location, [Peavey] stopped his Suburban to get gas and Guerra purchased an 18-pack of beer. Upon arriving at Guerra's trailer, [Peavey] consumed one beer, as he recalled, and Guerra gave him two or three beers to take with him. At about 8:30 p.m., [Peavey] stated that he arrived at Georgia's house where Chester's son, Tom Tutor, lived with his mother. [Peavey] found the Honda's engine too hot to work on, so he let it cool down. He drank two of the beers that he had, and Tom Tutor drank the other....[W]hen the vehicle's engine cooled, he began work on it and finished at about 11:00 p.m. When he finished, [Peavey] reported that Tom brought him a glass of red wine. [Peavey] claimed that he normally did not like wine, but he drank it on this occasion."    

According to Peavey, this alcohol alone would not have resulted in the level of impairment detailed above, and he therefore speculated that someone slipped him a mickey, i.e., put a drug in his wine.  To prove this defense, Peavey sought to introduce into evidence a police videotape of his 2000 DWI arrest; he wanted the jury,

who had seen the videotape in the instant case, to compare it with the 2000 videotape so that they could "see what he...looked like when he's been drinking all day versus what we think might have happened in this case." It [wa]s apparently [Peavey]'s position that the earlier videotape would show how [he] acted when he was under the influence of alcohol alone, as opposed to how the instant videotape showed [he] acted under the influence of alcohol and possibly a narcotic. The trial court sustained the State's objection of relevancy as to the 2000 DWI videotape. The State had argued that the evidence did not show the amount of intoxicants that [Peavey] had consumed on the other occasion; and that there was no evidence that [Peavey] had unknowingly ingested a drug in addition to the voluntarily consumed beer on the latter occasion. Further, there was no medical or expert testimony that the ingestion of a drug would have caused [Peavey] to react as he did on the latter occasion."

The trial court bought the state's reasoning and excluded the videotape, prompting Peavey to appeal and claim, inter alia, that this ruling deprived him of his right to present a defense.  The Court of Appeals of Texas correctly found, however that "the fundamental right to present evidence of a defense exists only so long as the evidence is relevant and not excluded by an established evidentiary rule."  And, according to the appellate court, the trial court correctly found that the videotape was irrelevant under Texas Rule of Evidence 401 and thus inadmissible under Texas Rule of Evidence 402.  Moreover, the court noted that even if the videotape were relevant, it could have been excluded under Texas Rule of Evidence 403 "if its probative value were substantially outweighed by such factors as the danger of unfair prejudice, confusion of the issues, or misleading the jury."   



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