State v. Yates

Full title: STATE of Texas, Appellant, v. Eugene YATES, Appellee

Court: Court of Appeals of Texas, Beaumont

Date published: Apr 27, 1989

772 S.W.2d 182 (Tex. App. 1989)

Opinion

No. 09 88 070 CR.

April 27, 1989.

Appeal from the County Court at Law No. 3, Montgomery County, Mason Martin, J.

L.T. Bradt, Houston, for appellee.

OPINION

DIES, Chief Justice.

On February 14, 1987, Appellee was arrested for driving while intoxicated in Montgomery County. The officer requested Appellee to submit to a video, which he refused. During the trial, Appellee reurged his motion to dismiss for failure of the State to video Appellee as required by TEX.REV.CIV.STAT.ANN. art. 6701l-1 (Vernon Supp. 1989). The court granted the motion and dismissed the driving while intoxicated information. The State appeals to this court on the sole point that such dismissal was error. We agree, reverse the action of the trial court, and remand the case for trial.

In 1983 the legislature amended article 6701 l-1 with section 24,¹ which requires the following:

1 TEX.REV.CIV.STAT.ANN. art. 6701l-1 note (Vernon Supp. 1989). Acts 1983, 68th Leg. p. 1568, 1605, ch. 303, sec. 24, eff. Jan. 1, 1984.

"`Sec. 24. (a) Each county with a population of 25,000 or more according to the most recent federal census shall purchase and maintain electronic devices capable of visually recording a person arrested within the county for an offense under Article 6701 l-1, Revised Statutes, or Subdivision (2), Subsection (a), Section 19.05, Penal Code.

"`(b) The sheriff of the county shall determine upon approval by the county commissioners court the number of devices necessary to ensure that a peace officer arresting a defendant for an offense listed in Subsection (a) of this section may visually record the defendant's appearance within a reasonable time after the arrest.

"`(c) The fact that an arresting officer or other person acting on behalf of the state failed to visually record a person arrested for an offense listed in Subsection

(a) of this section is admissible at the trial of the offense if the offense occurred in a county required to purchase and maintain electronic devices under this section.'"

So, clearly to us, if the statute allows the admissibility of the failure to video, the failure is a matter of the weight of the evidence. See Weaver v. State, 700 S.W.2d 776 (Tex.App. — Fort Worth 1985, pet. ref'd).

Appellee has one "cross-point" which we find to be without merit and it is overruled.

The judgment or order dismissing the information is reversed, and the case is remanded for trial.

Reversed and Remanded