Opinion issued August 8, 2017




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00721-CR
                           ———————————
                    KAREN JAYE MICHALEC, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                On Appeal from the County Court at Law No. 2
                          Fort Bend County, Texas
                    Trial Court Case No. 14-CCR-175539


                         MEMORANDUM OPINION

      Appellant Karen Jaye Michalec was arrested and charged with the Class B

misdemeanor offense of driving while intoxicated. See TEX. PENAL CODE § 49.04.

At trial, Michalec requested that the court allow her to introduce a voice exemplar

by reading to the jury without being subject to cross-examination. The trial court
denied her request, and a jury convicted her of driving while intoxicated. The court

assessed punishment at 19 days in jail with credit for one day served.

      In her sole appellate issue, Michalec argues that the trial court erred by

denying her request to introduce a voice exemplar without being subject to cross-

examination by the State. Because any alleged error was harmless, we affirm the

judgment.

                                    Background

      An officer with the Needville Police Department was sitting in a marked

patrol unit around 2:00 a.m. when he noticed something out of the ordinary. A

“small, two-door passenger car” failed to stop at a flashing red light. The officer

followed the vehicle and turned on his lights and siren to indicate that he was

pulling it over for a traffic stop. After he stopped the vehicle, the officer asked the

driver for her driver’s license and proof of insurance. The driver could not produce

either. While the driver was still in the vehicle, the officer smelled a “strong odor

of alcohol emitting from her breath and person.” The officer asked where she was

coming from and where she was going. She told him that she had come from home

and was going home. After she admitted she had been drinking, the officer asked

how much she had had to drink, and she said “a few,” meaning “four or five.”

      The officer asked the driver to get out of the vehicle and noticed that she was

“swaying a little bit” as she got out, she had glassy eyes, and her speech was


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slurred. After the driver got out of the car, the officer had her perform standard

field sobriety tests to determine if she was able to operate a motor vehicle. Based

on the driver’s performance, the officer concluded that she was too intoxicated to

drive. He detained her on suspicion of driving while intoxicated. The officer

identified the driver of the vehicle as appellant Karen Jaye Michalec.

      Michalec was charged by information with the offense of driving while

intoxicated. At a trial before a jury, the officer who made the traffic stop testified

about his interaction with Michalec on the night she was arrested. The officer

testified about his observations after stopping her, including that her eyes were

glassy and her speech was slurred. He also discussed the field sobriety tests and

their results. The officer then opined that based on his training, experience, and his

observations that night, Michalec had lost the normal use of her physical and

mental faculties because of the introduction of alcoholic beverages into her

“system.” The State introduced videos recorded on the officer’s vehicle and body

cameras during the traffic stop. The videos corroborated the officer’s testimony

about the results of the field sobriety tests.

      After the State rested, Michalec moved for a directed verdict, which the trial

court denied. She then sought to offer a voice exemplar into evidence. Specifically,

defense counsel wanted the trial court to allow Michalec to read a few sentences of

the Declaration of Independence in front of the jury in order to rebut the officer’s


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testimony that her speech was slurred on the night of her arrest. The trial judge

suggested that he would allow Michalec to introduce a recording of her voice, but

he expressed reluctance about allowing her to read in front of the jury without

answering questions. The court questioned defense counsel about how the

prosecutor was “going to be able to cross-examine” Michalec “on whether she’s

practiced” reading the sentences “with or without a slur, purposely covering it up,

purposely amplifying it.” Counsel argued that based on the holding in Williams v.

State, 116 S.W.3d 788 (Tex. Crim. App. 2003), the State was not entitled to cross-

examine Michalec based on her introduction of a voice exemplar. Counsel further

argued that she wanted to introduce the voice exemplar “as a rebuttal to what the

officer has testified.” The trial court then stated, “unless you want to open her up

for cross-examination, I’m not going to allow a voice exemplar of her standing in

front of the jury reading. Not going to happen. Denied.” Counsel objected to this

ruling based on the holding of Williams.

      The jury convicted Michalec of driving while intoxicated. She then entered

into an agreement with State regarding punishment, and the trial court, in

accordance with the agreement, sentenced her to 19 days in jail with credit for one

day served.

      Michalec appealed.




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                                       Analysis

      In a single issue, Michalec contends that the trial court erred by denying her

request to introduce a voice exemplar without being subject to cross-examination

by the State. She argues that she should have been allowed to introduce the voice

exemplar without waiving her Fifth Amendment privilege against self-

incrimination.

      A trial court’s decision to admit or exclude evidence is reviewed under an

abuse-of-discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim.

App. 2006); Smith v. State, 340 S.W.3d 41, 53 (Tex. App.—Houston [1st Dist.]

2011, no pet.). A trial court abuses its discretion when it acts arbitrarily and

unreasonably, without reference to any guiding rules or principles. Montgomery v.

State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990); Smith, 340 S.W.3d at 53–54.

A trial court’s evidentiary ruling will not be reversed unless that ruling falls outside

the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex.

Crim. App. 2002).

      Michalec relies upon Williams to support her contention that the trial court

erred by refusing to allow her to introduce a voice exemplar without being subject

to cross-examination by the State. In that case, the Court of Criminal Appeals

analyzed whether a defendant waived his Fifth Amendment privilege by

introducing a voice exemplar. Id. at 791–93. The Court stated that the “Fifth


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Amendment privilege against self-incrimination protects a defendant ‘from being

compelled to testify against himself, or otherwise provide the State with evidence

of a testimonial or communicative nature.’” Id. at 791 (quoting Pennsylvania v.

Muniz, 496 U.S. 582, 589, 110 S. Ct. 2638 (1990)). The Fifth Amendment,

however, does not apply to every sort of incriminating evidence, only to

incriminating evidence that is testimonial. Id. In order to be testimonial, the

communication “‘must itself, explicitly or implicitly, relate a factual assertion or

disclose information.’” Id. (quoting Doe v. United States, 487 U.S. 201, 210, 108

S. Ct. 2341 (1988)). The Court in Williams concluded that a voice exemplar did

not constitute testimonial evidence, and therefore a defendant does not waive his

Fifth Amendment privilege by introducing one. Id. at 793.

      In response to Michalec’s contention that the trial court erred, the State

argues that she inadequately briefed the issue of whether she was harmed by the

trial court’s refusal to allow her to admit a voice exemplar. The State also contends

that even if the trial court erred, and Michalec adequately briefed the issue of harm,

she was not harmed by the error.

      Assuming without deciding that the trial court erred by denying Michalec’s

request to introduce a voice exemplar without being subject to cross-examination

by the State, such errors are subject to a harm analysis. See Harmon v. State, 167

S.W.3d 610, 615–616 (Tex. App.—Houston [14th Dist.] 2005, pet ref’d); Williams


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v. State, 145 S.W.3d 737, 740–745 (Tex. App.—Fort Worth 2004, no pet.). The

nature of the error determines the standard under which harm is evaluated. TEX. R.

APP. P. 44.2. Constitutional error requires reversal of the conviction or punishment

unless the reviewing court determines beyond a reasonable doubt that the error did

not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a); Clay v.

State, 240 S.W.3d 895, 905–06 (Tex. Crim. App. 2007). “If there is a reasonable

likelihood that the error materially affected the jury’s deliberations, then the error

was not harmless beyond a reasonable doubt.” Rubio v. State, 241 S.W.3d 1, 3

(Tex. Crim. App. 2007). We determine the probable impact of the error in light of

all other available evidence. Id. Other errors that do not affect the substantial rights

of the defendant must be disregarded. TEX. R. APP. P. 44.2(b).

      Even if we reviewed Michalec’s issue under the more stringent

constitutional-error test, we conclude beyond a reasonable doubt that the trial

court’s alleged error in not allowing her to introduce a voice exemplar without

being subject to cross-examination did not contribute to her conviction. See Clay,

240 S.W.3d at 905–06; Harmon, 167 S.W.3d at 615–16. At trial, she sought to

introduce the voice exemplar in order to rebut the officer’s testimony that she

slurred her words on the night she was arrested. Assuming that the voice exemplar

would have rebutted the officer’s testimony that Michalec slurred her speech, that

testimony was not the only evidence indicating she was driving while intoxicated.


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The State presented testimony that Michalec ran a stop light, swayed as she got out

of her vehicle, and emitted a strong odor of alcohol. Additionally, she admitted to

the officer who pulled her over that she had four to five drinks that night. She

performed poorly on three standard field sobriety tests conducted by the officer. In

addition, the officer’s conclusion that Michalec was driving while intoxicated was

based on all of the observations he made that night, particularly the results of the

field sobriety tests, not just the fact that she slurred her words. The State

corroborated most of this evidence with videos recorded at the time of the arrest on

the officer’s vehicle and body cameras. In light of the overwhelming nature of the

State’s evidence without the officer’s testimony about Michalec’s slurred speech,

there is no reasonable likelihood that the alleged error in refusing to admit a voice

exemplar without subjecting her to cross-examination materially affected the

outcome of the jury’s deliberation. See Clay 240 S.W.3d at 905–06; Harmon, 167

S.W.3d at 615–16. Thus, the alleged error was harmless. See Clay 240 S.W.3d at

905–06; Harmon, 167 S.W.3d at 615–16.

      We overrule Michalec’s sole issue on appeal.




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                                   Conclusion

      We affirm the judgment.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Jennings, Higley, and Massengale.

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




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