Court of Appeals of Texas, Fourteenth District, Houston
Michelle R. Townsend, Houston, for appellant.
Clinton Morgan, Houston, for the State of Texas.
Panel consists of JAMISON, McCALLY, and BUSBY
SHARON McCALLY, Justice.
A jury convicted appellant Daniel Brandon Lyle of driving while intoxicated (DWI), and the trial court assessed punishment at one year confinement probated for two years. Appellant challenges his conviction in three issues concerning the admission of alleged hearsay evidence, the trial court's taking of judicial notice, and jury charge error. We affirm.
Houston Police Department (HPD) Officer Richard Martinez was on patrol when he received a call from dispatch at about 8:40 p.m. regarding a telephone report of a suspected intoxicated driver going north on Barker Cypress. Martinez pulled up to appellant's parked SUV at the 1400 block of Barker Cypress. The front right tire of appellant's SUV had blown out from striking the curb, and the engine was still running. Martinez noticed that appellant had glassy eyes and a strong smell of alcohol. Appellant said he had been drinking at an unknown bar and had been driving. Martinez administered the Horizontal Gaze Nystagmus (HGN) test and determined appellant was intoxicated because appellant exhibited six out of six clues from the test. Martinez brought appellant to the HPD central jail to give a breath sample.
At the jail, HPD Officer Rudolph Farias asked appellant some questions and operated the Intoxilyzer 5000 for taking appellant's breath sample. Appellant said he drank twelve beers between 12:00 p.m. and 8:00 p.m., and he had not eaten in four days. Farias administered the HGN test, and appellant exhibited all six clues. Farias administered the Walk and Turn test, and appellant exhibited four out of eight clues. Normally the HGN and Walk and Turn tests would have been recorded on videotape, but the recorder malfunctioned for an unknown reason, and no recording was made. Farias administered the breath test at about 10:00 p.m., and appellant had a 0.21 alcohol concentration.
The jury found appellant guilty of driving while intoxicated, and the trial court found a punishment issue true  and sentenced appellant to one year confinement probated for two years, among other things. In three issues, appellant contends the trial court erred by (1) overruling a hearsay objection; (2) commenting on the weight of the evidence by taking judicial notice of a Texas law regarding video recording of DWI arrestees; and (3) failing to instruct the jury about the effect of the trial court's taking of judicial notice regarding an adjudicative fact.
In his first issue, appellant contends the trial court erred by admitting hearsay testimony over appellant's objection. The following exchange occurred when Martinez was testifying on direct:
Q: Okay. And what did you— what impression did you ...