Javier Balderas v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00133-CR
Javier BALDERAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-5408
Honorable Raymond Angelini, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 3, 2003

AFFIRMED

The only issues raised in this appeal relate to the relief that Javier Balderas ("Balderas") claims he is entitled to based on the arresting officer's failure to videotape record him during his arrest for driving while intoxicated and after refusing to submit to an intoxilyzer examination. (1) Balderas contends that the failure to record him was a violation of his due process rights and entitled him to an instruction informing the jury that it could consider the absence of the videotape and the reasons for its absence in its deliberations.

In 1983, the Legislature required each Texas county with a population of 25,000 or more to purchase and maintain equipment capable of visually recording persons arrested for driving while intoxicated. See State v. Lyons, 812 S.W.2d 336, 339 (Tex. Crim. App. 1991); see generally 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice & Procedure 11.63 (2001). "This provision has never been codified or otherwise included in the published statutes, but it remains effective." 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice & Procedure 11.63 (2001).

The United States Supreme Court has held that the police do not have a constitutional duty to use any particular investigatory tool or to perform any particular tests. Arizona v. Youngblood, 488 U.S. 51, 59-60 (1988). Texas courts have expressly held that a violation of the statutory duty to videotape a person arrested for driving while intoxicated is not a denial of due process. See, e.g.,Finley v. State, 809 S.W.2d 909, 912 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd); Green v. State, 745 S.W.2d 477, 478 (Tex. App.--Corpus Christi 1988, pet. ref'd); Weaver v. State, 700 S.W.2d 776, 778 (Tex. App.--Fort Worth 1985, pet. ref'd). Accordingly, the arresting officer's failure to videotape Balderas did not result in a violation of his due process rights.

Texas courts also have expressly held that the only sanction available for the failure to make a videotape recording is that the fact of the failure may be admitted into evidence at trial. See State v. Lyons, 812 S.W.2d at 340-41; Finley, 809 S.W.2d at 912; Green, 745 S.W.2d at 478. In the instant case, the State's failure to videotape was introduced before the jury, and Balderas was not entitled to have a jury instruction submitted as an additional sanction. A jury instruction reciting specific facts and calling attention to a specific piece of evidence, such as the absence of the videotape recording, would constitute an impermissible comment on the weight of the evidence. Mendoza v. State, 88 S.W.3d 236, 240 (Tex. Crim. App. 2002).

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

1. The arresting officer testified that under standard procedures, a person who refuses to submit to an intoxilyzer examination is recorded on videotape performing the field sobriety tests.