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Thornton v. State7/20/1999
OPINION
Kevin Peter Thornton was indicted for felony driving while intoxicated. Appellant pleaded not guilty, but a jury found him guilty as charged. The trial court assessed punishment at three years' confinement. In a single point of error, appellant contends the court erred in denying his tender of a prior inconsistent statement by a State's witness.
Kyle Reynolds testified that he was involved in a three-car accident. As Reynolds began to exit the driveway of a car dealership, a pickup truck slowed to allow him to enter the street. A cab following the pickup truck attempted to stop, but its brakes locked and it struck the pickup in the rear. The pickup then struck Reynolds's truck. According to Reynolds, appellant was driving the cab. When Reynolds went to check on the cab's occupants, he saw two men in the cab and appellant was in the driver's seat.
Dallas police officer Danny Watley testified that he investigated the accident. Reynolds's truck was struck by a red pickup truck, which had been struck by a cab. Watley spoke with appellant, who stated that he had been driving the cab. Appellant's speech was slurred, and he smelled strongly of alcoholic beverages. He was placed under arrest for being intoxicated.
The police made a videotape of appellant at the police station. The videotape, which was admitted into evidence, showed that appellant repeatedly denied he was driving the cab. Watley testified that the videotape showed that appellant denied he was driving the cab fifteen to twenty times. On cross-examination, Watley testified he could not remember whether he testified at appellant's administrative license suspension hearing that appellant denied driving the cab.
Appellant testified that he owned the cab involved in the wreck, but he was not driving. Instead, Kevin Oates had been driving. Oates was interested in buying a cab, and appellant let Oates drive his cab.
Appellant then recalled Watley, questioning him about testimony he had given at the administrative hearing as follows:
"Defense: I think yesterday you told me that you didn't recall telling me under oath at the ALR hearing that Mr. Thornton had actually denied driving the automobile; you recall telling me that yesterday?"
"Watley: Yes, sir, I don't recall it."
"Defense: If I had an authenticated tape recording of that hearing, you wouldn't dispute the fact that you did say that Kevin Thornton never denied driving the automobile, you wouldn't dispute that, would you?"
"Watley: I wouldn't dispute it."
"Defense: It is possible you did?"
"Watley: There is a possibility."
"Defense: In other words at the ALR hearing in March, I think the exact date was_well, I don't have the exact date in March, but sometime in March at the ALR hearing, you might have forgotten that Kevin Thornton some 10 or 15 times on the videotape denied driving the automobile, is it possible you might have forgotten it, you weren't trying to mislead the ALR officer, is that fair to say?"
"Watley: That is fair to say."
"Defense: Like everybody else, your memory isn't actually fixed in stone? Sometimes I can't remember to do various things. Everybody has forgetful moments, do they not?"
"Watley: That's correct."
Before resting his case, appellant offered a tape recording of Watley's testimony at the administrative hearing. The trial court denied his tender.
In his sole point of error, appellant contends "the trial court erroneously refused to admit the relevant and critical audio tape on the issue of whether the appellant
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