JEROME ROGER BROWN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 27, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00207-CR
............................
JEROME ROGER BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the County Court at Law No. 2
Collin County, Texas
Trial Court Cause No. 2-204-88
.................................................................
O P I N I O N
Before Justices Whitham, Rowe and Whittington
Opinion By Justice Whitham
        Appellant appeals a misdemeanor conviction for driving while intoxicated. We find no merit in any of appellant's five points of error. Accordingly, we affirm.
        In his first point of error, appellant contends that the trial court incorrectly allowed a police report to be admitted into evidence over appellant's hearsay objection. In his second point of error, appellant contends that the trial court incorrectly allowed the police report to be admitted into evidence over appellant's bolstering objection. In his third point of error, appellant contends that the trial court erred in failing to instruct the jury to disregard the police report that was introduced into evidence and in failing to grant appellant's motion for a mistrial. Since these three points of error all complain of the trial court's admission of the police report into evidence, we will address them together. On January 20, 1988, appellant, the driver of an automobile, was stopped for the offenses of speeding and failure to signal lane changes. Field sobriety tests at the scene indicated that appellant was intoxicated. Appellant also submitted to a breath test, which revealed that appellant had an alcohol concentration of 0.16. At trial, Officer Crear, one of the arresting officers, testified. On cross-examination, counsel for appellant obtained a police report regarding the arrest made by Officers Crear and Dikovitsky. Appellant proceeded to have the report marked as defense exhibit number one. Appellant then used the report extensively during his cross-examination of Crear--even to the extent of having Crear refresh his memory from the report. Further, appellant repeatedly questioned Crear as to specific portions of the contents of the report. On redirect, the State offered the report into evidence as state's exhibit number two. The trial court overruled appellant's hearsay objection, and partially granted appellant's bolstering objection. The report was then admitted into evidence. FN:1
        In the instant case, appellant first raised the subject of the report and questioned Crear as to specific portions of its contents. Following this action, it was permissible for the State to offer into evidence those portions of the report on the same subject. Wintters v. State, 616 S.W.2d 197, 202 (Tex. Crim. App. [Panel Op.] 1981). This result is reached by application of the "rule of optional completeness," which provides, in pertinent part:
        When part of a act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other . . . . When a detailed act, declaration, conversation, writing or recorded statement is given into evidence, any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given into evidence . . . .
Tex. R. Crim. Evid. 107. Further, while the prosecution may not bolster its own witness unless that witness has been impeached, Urick v. State, 662 S.W.2d 348, 350 (Tex. Crim. App. 1983), the record in this case shows such impeachment by appellant. Thus, admission of the parts of the report prepared by Crear was not trial court error. However, the police report also contained portions prepared by Officer Dikovitsky, who was not available to testify in this case. The rule of optional completeness does not apply to portions of a police report prepared by a non-testifying witness in the face of timely and specific objection. See Urick, 662 S.W.2d at 350. Such objection was made. Therefore, these portions of the report were hearsay and their admission into evidence without instruction for the jury to disregard was error.
        Finding trial court error, we must now proceed to determine if such error constitutes reversible error. See Tex. R. App. P. 81(b)(2). Where the complained of hearsay is either cumulative of other evidence properly admitted, or rendered unimportant by overwhelming evidence of guilt, any error in its admission is harmless. Smith v. State, 734 S.W.2d 694, 696 (Tex. App--Houston [1st Dist.] 1987, no pet.). In light of the facts presented in this case, it is apparent that the portions of the report prepared by Dikovitsky were not only cumulative of Crear's testimony, but rendered unimportant by overwhelming evidence of appellant's guilt. Most notable among the latter was the blood alcohol content level of appellant. Under Tex. Rev. Civ. Stat. Ann. art. 6701l-1(a)(2)(B) (Vernon Supp. 1989), "intoxication" includes having an alcohol concentration of 0.10 or more. In the instant case, appellant had an alcohol concentration of 0.16. Thus, we conclude the admission of the entire report, including those portions prepared by Dikovitsky, to be harmless beyond a reasonable doubt under rule 81(b)(2). We overrule appellant's first and second points of error. Since we conclude that any error in admitting the report to be harmless error, it follows that the trial court did not commit reversible error in refusing to instruct the jury to disregard the report. It further follows that the trial court did not err in refusing to grant appellant a mistrial. Thus, we overrule appellant's third point of error.
        In his fourth point of error, appellant contends that the trial court erred in allowing the alcohol concentration test slip into evidence over appellant's objection. Appellant notes that under the rules and regulations for the breath testing of alcohol concentration, the intoxilyzer operator is required to continuously observe the subject of the test for at least fifteen minutes prior to testing. Appellant argues that the actual time of observance was only fourteen minutes and fifty-one seconds--some nine seconds short of the required period. While the record shows that observation began at 12:49 a.m., the intoxilyzer test strip shows that the test was taken at 1:05 a.m.--sixteen minutes later. The crux of appellant's argument is his claim that the videotape offered into evidence by the State shows that the test was taken at 1:03:51 a.m. Unfortunately, the videotape is not part of the record in this appeal. Indeed, on this record, the only evidence relating to the time the test commenced is the test slip itself and the testimony of Officer Ellzey, the intoxilyzer operator. Both indicate that the test was taken at 1:05 a.m. Thus, we conclude appellant's fourth point of error to be without merit. We overrule appellant's fourth point of error.
        In his fifth point of error, appellant contends that the trial court erred in overruling appellant's objection to the State's question regarding whether appellant had ever been intoxicated before. During his testimony on direct examination, appellant stated that on the occasion in question he was not intoxicated--that he was not drunk. Appellant further testified as to his intake of alcohol on the evening in question. On cross-examination, appellant was questioned about the number of drinks he could handle safely in an evening and about his awareness of alcohol intake and time/weight/intoxication factors. Appellant was then asked if he had ever been intoxicated before. Appellant's objection on relevancy grounds was overruled. Rule 401 of the Texas Rules of Criminal Evidence provides:
        "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 402 of the Texas Rules of Criminal Evidence provides:
        All relevant evidence is admissible, except as otherwise provided by constitution, by statute, by these rules or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible.
Appellant injected his awareness of his capacity for alcohol and his knowledge of its effects before the jury. Further, he testified that he was not intoxicated. Thus, under rule 401 appellant's personal knowledge and experience of the physical and mental state of intoxication is relevant, and admissible under rule 402. Thus, we conclude that the trial court did not err in overruling appellant's relevancy objection. We overrule appellant's fifth point of error.
        Affirmed.
 
 
                                                          
                                                          WARREN WHITHAM
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
890207F.U05
 
FN:1 While the trial court sustained appellant's bolstering objection as to part of the report, those portions were not excised and no instruction to disregard was given by the court. Thus, we treat the report as if it was admitted in toto -- which, in effect, it was.
File Date[12-27-89]
File Name[890207F]