X. In-Court Demonstrations/Exhibits
A. FIELD SOBRIETY TESTS
Baker v. State, 879 S.W.2d 218 (Tex.App.—Houston [14th Dist] 1994, pet. ref’d).
Court properly refused to allow defendant to demonstrate his ability to perform FSTs in court as no predicate was laid as to reliability or probative value of said demonstration.
B. SMELL TEST
Lewis v. State, 933 S.W.2d 172 (Tex.App.—Corpus Christi1996, pet. ref’d).
Defendant claimed beer he was consuming was non-alcoholic beer to explain odor officers detected on his breath at time of stop. Defense counsel wanted to do experiment where officers in front of the jury would be asked to judge which of 9 cups had alcoholic and which had non-alcoholic beer. Test was properly disallowed as conditions of test substantially differed from those existing at time of the stop.
C. SMELL & TASTE TEST
Kaldis v. State, 926 S.W.2d 771 (Tex.App.—Houston [1st Dist] 1996, pet. ref’d).
Defense request that jurors be allowed to smell and taste non-alcoholic mixtures so jurors would see that it is possible for non-alcoholic mixtures to smell and taste like alcoholic beverages was properly denied.
D. CHART OF SYMPTOMS OF INTOXICATION INADMISSIBLE
Markey v. State, 996 S.W.2d 226 (Tex.App.—Houston [14th Dist.] 1999, no pet.).
In jury trial, chart on which officer listed symptoms of intoxication observed in that case was found to be a proper demonstrative aid, but should not have been admitted into evidence. Error in doing so found to be harmless.
E. CHART OF SYMPTOMS OF INTOXICATION—DEMONSTRATIVE EVIDENCE
Baker v. State, 177 S.W.3d 113 (Tex.App.—Houston [1st Dist.] 2005, no pet.).
The Court held that a fill-in-the-blank chart that covered signs of intoxication the officer observed was admissible as demonstrative evidence. The prosecutor filled in the blanks as the officer testified. The fact that the chart might contain information similar to that in the police report does not render it inadmissible as a demonstrative aid.
F. DEMONSTRATION OF DEFENDANT’S SPEECH
Williams v. State, 116 S.W.3d 788 (Tex.Crim.App. October 1, 2003).
To rebut the evidence that defendant’s speech was slurred due to alcohol, his attorney sought to have his client provide a voice exemplar before the jury, but wanted to do so without being subjected to cross examination. The Court of Appeals found that the trial Court properly prohibited this holding that other means of showing the same thing were available and that to allow the defendant to do so without being exposed to cross examination risks great potential prejudice to the State and risks misleading the jury. The Court of Criminal Appeals reversed finding that a voice exemplar is not testimonial whether it is offered by the State or the Defense. It is physical evidence.
