State v. Reed

20 Citing cases

  1. Davis v. State

    949 S.W.2d 28 (Tex. App. 1997)   Cited 5 times
    Holding officer's testimony conclusively established that the fifteen-minute observation requirement was satisfied and no instruction was required

    Davis initially complains that the trial court erred by denying his request to include a definition of "presence" in the jury charge. Davis asked the court to include the definition set forth in State v. Reed, 888 S.W.2d 117, 122 (Tex.App. — San Antonio 1994, no pet.). Specifically, Davis requested that the court define the term "presence" as follows:

  2. Psyk v. State

    NO. 09-16-00154-CR (Tex. App. Apr. 18, 2018)   Cited 1 times

    However, the Texas Administrative Code explicitly states direct observation is not required to show presence. 37 Tex. Admin. Code § 19.3(a)(1); see State v. Reed, 888 S.W.2d 117, 121 (Tex. App.—San Antonio 1994, no pet.) (explaining the 1990 Code amendment removing the requirement that operator continuously observe subject in favor of current requirement that the operator merely remain in the subject's "presence"). Psyk's argument assumes that the tasks the trooper completed upon arrival at the jail could not have occurred once the observation period began; such an argument is in direct opposition to the Administrative Code.

  3. Correa v. State

    No. 05-12-01197-CR (Tex. App. May. 2, 2014)

    We conclude Cork's testimony was sufficient to show he remained in appellant's presence for the requisite period.See State v. Reed, 888 S.W.2d 117, 122 (Tex. App—San Antonio 1994, no pet.) (defining presence as including being within sight). We overrule appellant's first point of error.

  4. McIntyre v. State

    NO. 01-11-00821-CR (Tex. App. Nov. 29, 2012)

    The term "presence" as used in section 19.4 has not been administratively or legislatively defined; therefore, it must be given its ordinary and plain meaning. State v. Reed, 888 S.W.2d 117, 122 (Tex. App.—San Antonio 1994, no pet.). The Reed court defined "presence" as an

  5. State v. Hanrahan

    No. 10-11-00155-CR (Tex. App. Feb. 15, 2012)   Cited 2 times
    In Hanrahan, the officer saw Hanrahan driving at 1:00 a.m. and noticed that her vehicle swerved from side to side within its lane before crossing the fog line that marked the improved shoulder.

    However, the provisions of article 28.01 are not mandatory, and the question of whether to hold a pre-trial hearing on a pre-trial motion to suppress evidence is within the sound discretion of the trial court. SeeCalloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988); Morrison v. State, 71 S.W.3d 821, 825-26 (Tex. App.—Corpus Christi 2002, no pet.); State v. Reed, 888 S.W.2d 117, 119 (Tex. App.—San Antonio 1994, no pet.); Cox, 843 S.W.2d at 752; see also Montoy, 2009 Tex. App. LEXIS 8221, at **11-12. An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably without reference to any guiding rules or principles.

  6. Kuykendall v. State

    335 S.W.3d 429 (Tex. App. 2011)   Cited 14 times
    Holding judge was not disqualified from presiding over criminal trial for possession of a controlled substance despite the judge’s having represented the defendant in a DUI case that was used to enhance the punishment in the possession case

    A trial court may consider the motion before trial, but no error occurs if the trial court, in its discretion, elects to determine the merits of the motion during the trial when the evidence is offered and a proper objection is lodged. See Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim.App. 1988); State v. Reed, 888 S.W.2d 117, 119 (Tex.App.-San Antonio 1994, no pet.). It is then incumbent on the defendant to properly object when the evidence is offered, and preserve the issue for review.

  7. Mata v. State

    46 S.W.3d 902 (Tex. Crim. App. 2001)   Cited 177 times
    Holding that the trial court abused its discretion by admitting the State's evidence of retrograde extrapolation

    Nevertheless, Mata conceded at trial that McDougall was qualified to perform retrograde extrapolations generally; he complained only that McDougall could not reliably apply the technique to Mata. See Coward v. State, 993 S.W.2d 307 (Tex.App.-San Antonio 1999, no pet.); Mireles v. Texas Department of Public Safety, 993 S.W.2d 426 (Tex.App.-San Antonio 1999), aff'd, 9 S.W.3d 128 (Tex. 1999); State v. Reed, 888 S.W.2d 117 (Tex.App.-San Antonio 1994, no pet.); Kapuscinski v. State, 878 S.W.2d 248 (Tex.App.-San Antonio 1994, pet. ref'd); State v. Krager, 810 S.W.2d 450 (Tex.App.-San Antonio 1991, pet. ref'd); State v. Kost, 785 S.W.2d 936 (Tex.App.-San Antonio 1990, pet. ref'd); Douthit v. State, 739 S.W.2d 94 (Tex.App.-San Antonio 1987, no pet.); Harrell v. State, 725 S.W.2d 208 (Tex.Crim.App. 1986). In reviewing the testimony, we find that, while McDougall's testimony indicates a general understanding of the BAC curve and the concepts of absorption and elimination, it reflects failure to explain the theory to the court with any clarity.

  8. State v. Velasquez

    487 S.W.3d 661 (Tex. App. 2016)   Cited 4 times

    In particular, the decision to set an article 28.01 hearing or motion to suppress is not mandatory, but within the trial court's discretion. Calloway v. State, 743 S.W.2d 645, 649 (Tex.Crim.App.1998), State v. Reed, 888 S.W.2d 117, 119 (Tex.App.—San Antonio, no pet.). The court in this case, called the case for the suppression motion to be heard prior to trial.

  9. Serrano v. State

    464 S.W.3d 1 (Tex. App. 2015)   Cited 18 times
    Holding defendant failed to raise a fact issue about observation period and was not entitled to 38.23 instruction where officer did not remember observing defendant for fifteen minutes, but testified she must have observed defendant while he was in the holding cell, because she followed standard procedures

    Besides actual presence, the law recognizes constructive presence, which [the] latter may be predicated of a person who, though not on the very spot, was near enough to be accounted present by the law, or who was actively cooperating with another who was actually present. State v. Reed, 888 S.W.2d 117, 122 (Tex.App.—San Antonio 1994, no pet.) (emphasis in original) (citations omitted). C. Preservation of Error

  10. Esparza v. State

    No. 08-11-00120-CR (Tex. App. Jul. 18, 2012)

    However, courts have consistently have held that these terms are not mandatory and have thus upheld a trial court's decision to determine at which point to hear a suppression motion as an exercise of its discretion. Calloway v. State, 743 S.W.2d 645, 649 (Tex.Crim.App. 1988); Morrison v. State, 71 S.W.3d 821, 825-26 (Tex.App.--Corpus Christi 2002, no pet.); State v. Reed, 888 S.W.2d 117, 119 (Tex.App.--San Antonio 1994, no pet.). Without citing relevant authority or providing reasoned analysis, Esparza argues that we should nonetheless reverse his conviction because his trial counsel "surely was ineffective in allowing [him] to plea[d] guilty before a hearing on the motion to suppress could be heard."