Opinion issued August 2, 2012.




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                             ————————————
                                NO. 01-11-00411-CR
                             ———————————
                       THE STATE OF TEXAS, Appellant
                                          V.
                      DESIREE HOPE RUSSELL, Appellee



                 On Appeal from the County Court at Law No. 1
                           Fort Bend County, Texas
                     Trial Court Case No. 09-CCR-144297


                           MEMORANDUM OPINION

      The State of Texas appeals from the trial court’s granting of appellee

Desiree Hope Russell’s motion to suppress evidence in the underlying case, in

which she was charged with the offense of driving while intoxicated. In five

points, the State urges that the trial court abused its discretion in granting Russell’s
motion to suppress a forty-two-minute video and audio recording depicting Russell

at the scene of her arrest and during the ride from the scene to jail.

      We affirm.

                                     Background

      On July 16, 2009, Russell was charged with driving while intoxicated which

was alleged to have occurred on June 16, 2009. Russell moved to suppress a video

and audio recording of her taken at the scene of her arrest and during her

subsequent ride to jail in the back of the patrol car. The video and audio were

recorded by the in-car camera of the arresting officer, Deputy J. Norsworthy of the

Fort Bend County Sheriff’s Department. At the hearing on the motion to suppress,

the State presented the testimony of two deputies who were on the scene when

Norsworthy activated his in-car camera, performed field sobriety tests, and arrested

Russell. Norsworthy did not testify; it is undisputed that he died in an unrelated

incident before the hearing.

      Deputy M. Manuel testified that he was off-duty on June 16, 2009 when he

saw a black SUV swerving in traffic. At the hearing, Manuel identified the driver

of the vehicle as Russell. Manuel called the Fort Bend CountySheriff’s Office

dispatch to report the driver. When Russell stopped her SUV at a stop light,

Manuel saw that Russell’s eyes were closed and her head was down. He woke

Russell and waited for an on-duty officer to arrive. He testified that he remained at

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the scene after Norsworthy arrived and watched Norsworthy conduct the field

sobriety tests and arrest Russell. Manuel testified that State’s Exhibit one, a DVD

containing a copy of the recording of Russell on the day of her arrest, accurately

reflected what he saw on the road on the day of Russell’s arrest. However, Manuel

could not say whether Norsworthy conducted the field sobriety tests correctly

because of the distance between him and Norsworthy. And while it did not appear

to Manuel that any changes to the recording had been made, he testified that he

could not be sure the recording had not been edited.

      Deputy F. Turner also testified at the hearing. Turner testified that he

arrived at the scene at about the same time as Norsworthy. Turner observed

Norsworthy perform the field sobriety tests and could hear what Norsworthy said

to Russell. On cross-examination, Turner admitted that there were times that he

looked away from Norsworthy and Russell and that he did not see all parts of the

field sobriety tests. With respect to authenticity, Turner testified that he had seen

the recording on State’s Exhibit one, and that it was an accurate video of what took

place at the scene of the arrest.

      Deputy B. Wall testified about the department’s procedure for handling

recordings made by in-car cameras.        Wall stated that he was in charge of

maintaining the department’s recording system and fulfilling video copy requests.

Wall explained the process by which he maintained the recordings, noting that the

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in-car recordings automatically upload to the system when a patrol car enters the

area surrounding the station. Wall testified that the software used to maintain the

recordings did not allow for editing of any kind, that all hardware and software for

the recording system were locked in his office, and that he specifically copied the

recording contained on State’s Exhibit one.

      At the hearing, Russell’s counsel urged the trial court to suppress State’s

Exhibit one based on lack of probable cause, because it violated Russell’s right to

confrontation, and because the State had failed to authenticate it.           The State

conceded that “there are statements throughout the video that are testimonial” and

agreed that it would not “put in any evidence of Officer Norsworthy testifying to

any material.” But the State argued that the recording also contained Russell’s

“outbursts” which the State contended were “non-hearsay under [Rule] 801 that

should definitely come in.” The State also argued that “street-corner conversations

. . . are non-testimonial . . . and that’s what the majority of this case is.” At the

conclusion of the hearing, the trial court announced its ruling as follows:

      The Court: Counsel, I’ve heard the arguments. I read the cases; and
      based on the testimony that I’ve heard today and the viewing of the
      video, I’m going to deny the Motion to Suppress as far as probable
      cause; but I am going to suppress the video.

      The State: And Judge, just to be clear, is that the video in its entirety
      or just the testimonial?

      The Court: The video in its entirety.

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      ....

      The State: I guess your finding is that it’s testimonial. Is that why?

      The Court: Well, there’s —there[are] several issues.

      The State: Okay.

      The Court: I’m not going to go into them. I’m going to suppress the
      video.

      The State: I understand. I understand.

      The trial court entered findings of fact and conclusions of law. Its findings

of fact state that State’s Exhibit one contained, among other things, interrogations

and questioning of Russell, Norsworthy administering scientific field sobriety tests,

verbal questioning and conversation between Russell and Norsworthy, and

Norsworthy verbally and physically arresting Russell. Its conclusions of law state

that admitting State’s Exhibit one, which contained testimonial hearsay statements,

would violate Russell’s right to confrontation guaranteed by the Sixth Amendment

of the United States Constitution, the Texas constitution, and the hearsay rule. The

trial court also concluded that the State failed to authenticate State’s Exhibit one.

      The State appealed. Importantly, although it proffered State’s Exhibit one,

the entire forty-two-minute recording, as its only exhibit at the hearing, the State

notes that, on appeal, it “seeks appellate review” of only two discrete portions of

State’s Exhibit one: (1) a two-and-a-half-minute clip that depicts Russell

performing field sobriety tests at the scene of her arrest, and (2) a two-minute clip
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that depicts Russell’s behavior in the back of Norsworthy’s patrol car during a

portion of the ride from the scene of her arrest to jail. In other words, the State

seeks a reversal of the trial court’s ruling with respect to two portions of the

recording it contends are admissible despite the fact that the trial court was never

asked to rule on their admissibility but, rather, was asked only to rule on the

admissibility of the forty-two-minute recording in its entirety.

                                Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence for an

abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

We review the record in the light most favorable to the trial court’s ruling. Id. We

will sustain the trial court’s ruling if it is reasonably supported by the record and is

correct on any theory of law applicable to the case. Id. We give almost total

deference to the trial court’s determination of historical facts and review de novo

the trial court’s application of the law to those facts. Id. Finally, we must review

the trial court’s ruling in light of what was before the trial court at the time the

ruling was made. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App.

2000).

                                       Analysis

      Here, the trial court suppressed the entire forty-two-minute video and audio

recording offered as State’s Exhibit one.         Although the State concedes the

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inadmissibility of some portions of State’s Exhibit one, it urges this court to

determine that two short clips within State’s Exhibit one are in fact admissible, and

to reverse the trial court’s ruling on the basis that the trial court should have

admitted those two clips. Its brief states:

      The trial court suppressed the entire video of the investigation and
      [Russell’s] arrest and ride to the jail. The State seeks appellate review
      of only the one-leg stand and the walk-and-turn field sobriety tests
      and a portion of [Russell’s] ride to the jail showing her spontaneous
      statements and acts. . . . The trial court abused its discretion in
      suppressing at least these portions of the recording.

While portions of State’s Exhibit one may have been admissible, the record does

not reflect that the State ever proffered to the trial court—or obtained a ruling on

the admissibility of—a redacted version of State’s Exhibit one containing only the

clips of which the State now seeks review. Rather, both the State and Russell

argued the admissibility of State’s Exhibit one as an all-or-nothing proposition.

The only request they made of the trial court was that it rule on the admissibility of

State’s Exhibit one in its entirety.

      The Court of Criminal Appeals has held the State, in an appeal from a trial

court’s decision to grant a motion to suppress, cannot obtain a reversal based on an

argument that was not presented to the trial court. See State v. Steelman, 93

S.W.3d 102, 106–08 (Tex. Crim. App. 2002) (holding that State, in its appeal from

trial court’s ruling on motion to suppress, cannot rely on theory that was not

presented to trial court). Similarly, here, the State cannot obtain a reversal of the
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trial court’s decision to suppress State’s Exhibit one by seeking review of an

evidentiary proffer different from the one offered in and ruled upon by the trial

court. See id. Accordingly, we conclude that the State’s argument on appeal—that

this Court should reverse the ruling of the trial court as to two particular portions of

State’s Exhibit one, despite the fact that the trial court was never asked to rule on

the admissibility of those two clips—has not been properly preserved and

presented for interlocutory review.1 See TEX. R. APP. P. 33.1(a); Martinez v. State,

91 S.W.3d 331, 337 (Tex. Crim. App. 2002) (noting that the “raise it or waive it”

rule requiring the parties to bring to trial court’s attention “the very complaint that

party is now making on appeal” applies equally to State and defendant and holding

that trial court “cannot be held to have abused its discretion merely by ruling on the

only theories of law presented to it”); State v. Mercado, 972 S.W.2d 75, 77–78

(Tex. Crim. App. 1998) (noting, in State’s appeal from order suppressing evidence,

“the basic principle of appellate jurisprudence that points not argued at trial are

deemed to be waived applies equally to the State and the defense,” and courts of

appeal have no latitude to reverse trial court’s decision on theories not previously

presented to trial court for its consideration).




1
      Because of this disposition, we do not address and express no opinion on the
      merits of the points of error raised by the State.
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                                   Conclusion

      We affirm the trial court’s order granting Russell’s motion to suppress the

video and audio recording contained in State’s Exhibit one.



                                               Rebeca Huddle
                                               Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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