Jury Selection by Texas Mexico Law

<h1>Jury Selection</h1> P R O C E E D I N G S (9:10 a.m.) (Open Court, Defendant Present) THE COURT: Are we all ready? MR. MARCUM: State’s ready, Judge. THE COURT: All right. Ready, Ms. Keene? MS. KEENE: We are, Judge. THE COURT: Okay. Everything’s been agreed to? All right. Let’s bring ’em in. THE COURT: Mr. Reid, are you gonna read the information? MR. REID: I will. Judge, would you like me to read the Special Issue on the information of a. or not? THE COURT: The thing is what if it’s a DWI and not with a .15? They don’t find that that’s — MR. REID: We were talking about it, Judge. I think it’s that usually the jury instructions are to find DWI – THE COURT: Yeah. MR. REID: — and then to further find – THE COURT: Well, that’s just what I said. MR. REID: Okay. Well, would you like me &emsp; to read it? THE COURT: I guess not, just to be careful. Do you have an opinion on that? MS. KEENE: I don’t. He can read ’em both. I don’t care. MR. REID: I’ll just read ’em then. (JURY PRESENT) THE COURT: You may be seated. Okay. Mr. Ramirez, if you would stand, please. This is Cause No. 1311541, the State of Texas versus Nicolas A. Ramirez. Mr. Ramirez, you have been charged with the offense of driving while intoxicated with a blood or breath score of .15 or greater, range of punishment being up to one year and/or a fine up to $1,000. Do you understand that, sir? THE DEFENDANT: I do, Your Honor. THE COURT: All right. “In the name and by the authority of the State of Texas comes now the undersigned assistant district attorney of Tarrant County, Texas, in behalf of the State of Texas, and presents in and to County Criminal Court No. 7 of Tarrant County, Texas, that &emsp; Nicolas A. Ramirez, hereinafter called defendant, in the county of Tarrant and the state aforesaid, on or about the 2nd day of January 2013, did then and there operate a motor vehicle in a public place while the said defendant was intoxicated. Against the peace and dignity the State.” THE COURT: Go ahead and read the second paragraph. MR. REID: Yes, ma’am. “And it is further presented to the said court that the analysis of the specimen of the defendant’s breath in this case showed an alcohol concentration level of .15 or more at the time the analysis was performed. Against the peace and dignity the State.” THE COURT: To this offense charged, do you plead guilty or not guilty? THE DEFENDANT: Not guilty, Your Honor. THE COURT: Thank you. All right. Ladies and gentlemen, I am going to give you some more information, but I want to swear you in first. If you would raise your right hand and be sworn. (Jury Sworn) THE COURT: All right. Just a few &emsp; instructions we’re gonna go over. I’m gonna explain the procedures to you so you kind of know what to expect and when to expect it. First of all, and most importantly, you’ll need to listen very carefully to all the witnesses. This is not like TV where the court reporter automatically reads back something. It takes a good deal of time to find that on the record. It has to be transcribed. She’s not doing words; she’s doing kind of codes I guess you could say. So it’s much better to listen very carefully. Now, it’s not a problem to raise your hand and say I didn’t hear that or I didn’t understand that, you know, because part of you understand but not the entire question. Just interrupt us, stop us and make sure that you understood what was said. Okay? All right. No one may discuss this case with you, including each other, until you deliberate on a verdict, which is at the end of all the evidence. So at lunch, so forth, you don’t talk about what you heard in the courtroom, you don’t call somebody on the phone or talk to anybody and discuss this trial. If anyone does try to talk to you about the trial or any witnesses comes up to you or anything like that or attorneys, you need to tell me or my bailiff promptly. Okay? &emsp; Don’t feel offended if the attorneys don’t speak to you. That’s what they’re — They’re not supposed to. Just as I just said, to maintain the integrity of the jury system the law prohibits them from speaking to you. So if you’re on the same elevator, you know, or something, they probably won’t even get on. So that’s the way it’s supposed to be. Again, don’t discuss the evidence with anyone, even your fellow jury members, until you’re doing your verdict. Likewise, don’t read any newspaper article or listen to anything on the television or radio that would in any way discuss this case. We don’t anticipate coverage, but it could happen. And, hopefully, we’re gonna get through the trial today, so it’s not even gonna be an issue. But if we don’t, those are some of the instructions. Also, you may not go to any of the locations referred to by the witnesses or perform any type of investigation like going to the clerk’s office or looking at a court file or anything like that. What you will get to make your decision is gonna be in the confines of this room. It’ll be from the witness stand more than likely. Okay? The trial will begin with opening statements made by the State, then by the defense. They &emsp; may waive opening statements or give it at a later time. That’s entirely up to them. Remember that opening statements are not evidence. They’re gonna, basically, say we think the evidence is gonna show you A, B, C. But they’re not evidence at all. Again, evidence comes from the witness stand or from exhibits and so forth that are introduced into evidence. If something is introduced and it doesn’t get into evidence, you don’t consider it. And I’m gonna get into that in just a minute. Your oath as a juror states that you will render a verdict only on the law and the evidence in this trial. And that’s exactly what I’m talking about. I’ll give you the law at the end of the trial, which I’ve already given you some of it, and you will follow that, and you will follow it based upon the evidence that you’ve received. Now, the evidence that you may consider will obviously consist of the testimony of the witnesses either in person or through written depositions. Also, there’s law that — there’s evidence that can be presented in a physical state such as a picture or a piece of paper or something. And the attorneys will have that marked as an exhibit and they will ask me to admit it into evidence. And if I do, that because &emsp; evidence in the case; if I don’t, it doesn’t. It goes back tO the attorneys’ bench pretty much. But those things, such as photographs, are called exhibits. Okay. It’s important to know that during a trial the attorney may make many objections, may make very few objections. And I think I said this earlier. Don’t consider it my subliminal message to you if I overrule every objection that one attorney makes and sustain every objection another one does. That – That has no bearing whatsoever. I can tell you that I know all these attorneys. I know ’em just the same, like ’em just the same and respect their work just the same. Okay? And I have nothing against either of their clients, the State or Mr. Ramirez. Okay. Now, when an objection is made — I think I said this before — I’ll either sustain it or I’ll overrule it. Sustaining means I agree with that objection, overrule it means I don’t. And like I said earlier, it’s kind of like a referee. There could be times when you go to the jury room, but — so that I can hear argument of counsel. Because according to the Rules of Criminal Procedure there are some things that a jury cannot hear. And don’t consider that something mysterious or anything like that. It’s just an additional break for you and not for us. That’s, &emsp; basically, what it is. Some evidence could be introduced for a very limited purpose, and if that’s the case, I’ll instruct you on that. Another — I’ll say an example of evidence that could come before you that I will ask you to disregard is these — are these two examples. One is that perhaps there’s a lay witness, or perhaps not, perhaps this person has been a witness before, and something is asked of that witness and the other attorney makes an objection — let’s say it’s hearsay — and I agree and I sustain the objection but the witness has blurted out the answer. That’s not part of the evidence because I sustained that objection and they shouldn’t have answered. Sometimes they are nervous, they don’t know. You know, sometimes they just don’t know and they just blurt it out. You have to disregard that. Yes, you still heard it, it’s still in your head, but it’s not in that body of evidence that you may consider in this case. Likewise, if there is — there are large photographs or such thing at the court reporter’s desk and you see it but some of those photographs are not allowed in, then you can’t consider ’em. They’re not in that body of evidence. You’ll understand as time goes &emsp; by. Now, each of you must determine the facts as you see them. Remember I said that y’all determine what the facts are, because if everybody agreed, we wouldn’t be in trial? So in order to determine what the facts are, you have to assess the credibility or the believability of each of those witnesses that you hear and the weight and value of their testimony that you decided to give them. And it’s no different from you assessing my credibility right now or anybody else’s on the street that you talk to each day. You can rely upon what you’ve always relied upon. But I’m gonna tell you a few things that you can think of in considering the weight and value and their credibility. You may consider the person’s appearance, their attitude and behavior, the person’s interest in the outcome of the case, the relationship of the defendant or the State to the witness. You may consider the inclination of a witness to tell the truth. You may consider the improbability or the probability of what the witness says, and you may consider reasonable inferences from their testimony. All those things are permissible. They’re all your things. Whatever you individually need to use to assess that. So after the opening statement, the trial &emsp; proceeds in this way. The prosecutors, who have the burden of proof, they will call their witnesses and have what’s called direct examination of their witnesses. If Ms. Keene chooses to cross-examine them, she will do so. When they’re through calling all their witnesses — whether it’s one or five I don’t know — then they’ll say the State rests. At that time Ms. Keene may or may not call any witnesses at all, but if she does, because she doesn’t have to, but if she does, she has direct exam of her witnesses and they can cross-examine if they choose to. After that they can have rebuttal witnesses if they want to. But that’s kind of how it goes. Now, remember, the — the defendant is never required to testify and he’s never required to prove his innocence. He doesn’t have to do anything. They can sit there this entire day and not respond or question any witnesses at all. He’s presumed innocent and he doesn’t have to prove anything. Remember that? Okay. When the defense rests, if there are no rebuttal witnesses, the State will close, the defense will close. At that time — of course, there’s gonna be breaks and stuff, but at that time I will read to you the Court’s charge and you will hear closing arguments — which, again, is not evidence; it’s just arguments — from the State, then from the defense, and &emsp; then ended by the State. They’ll each have the same amount of minutes. We didn’t flip a coin. That’s how the criminal procedure — that’s how it works. Every trial is the same. That’s how it works. So at the conclusion of the closing arguments I will give to the bailiff the Court’s charge. He will take you back there, you’ll elect a forewoman, foreman, foremen, whatever, of the jury and you’ll begin your deliberations. And we, basically, just kind of sit around and wait. And there’s no hurry for you to do that. Okay. Anybody have any questions or anything before we get started? Please let me know if you can’t hear something. Please let me know if you want a break. I’m not opposed to breaks. I try to do one every hour. But it’s okay whenever it happens. All right? All right. Go ahead, Mr. Reid. MR. REID: May it please the Court? THE COURT: Yes, sir. MR. REID: Counsel. Good morning everybody. THE JURY: Morning. MR. REID: I’m gonna come stand over here. I don’t wanna kind of stand on top of you and &emsp; yell at you. The Judge told you a lot about how the trial is gonna proceed. Each side’s gonna get a turn and all that good stuff. I’m here to talk to you today about the facts and kind of give you a road map. Okay? If you think back to Friday, we talked about the law. So now you kind of have your template for the law. And as the Judge said, we’re gonna take the facts, we’re gonna put ’em over that template and at the end of the day we’re just gonna make a decision. Okay? I’m gonna talk to y’all. See, when the witnesses get up there and there’s evidence, sometimes it’s jumbled up. So I wanna kind of lay out chronologically the events that happened that day so you can kind of compartmentalize everything as you hear it. This case starts January 2nd, 2013. Okay? That’s been a while, but there’s videos, there’s reports. It’s used to refresh people’s recollection so they can testify to the facts of that day. So we’re gonna start on January 2nd, 2013 at 12:56 a.m. The first witness you’re gonna hear from is the arresting officer. He was working traffic that night and along comes the defendant in a 2001 sports utility vehicle. He’s driving in both lanes of traffic. &emsp; So that catches the officer’s attention and he follows that vehicle. He sees more traffic violations and he stops that vehicle. When he approaches the defendant in the driver’s seat, he smells an odor of alcohol and there’s bloodshot eyes. Initially the defendant says that he hasn’t been drinking that night, but shortly thereafter changes his answer that he had been. Now, at this point it’s kind of the officer’s duty to perform a DWI investigation. We’re gonna get into the details of that investigation through the testimony. Okay? It’s a little complicated. There’s a lot of things that go into it. But that’s what he’s gonna testify to. The conclusion of those tests indicated to the officer that the defendant was intoxicated. At that point he made a decision, based on those tests, to arrest the defendant. When you’re arrested for DWI in Texas, you’re given an option to provide a blood or breath specimen. In this case the defendant chose to provide that specimen. We’re gonna talk about the reasons someone may or may not provide that specimen and the consequences of refusal. But in this case he did. The second witness we’re gonna have for you is the officer that operates an instrument that’s &emsp; used to measure someone’s breath or blood — in this case it’s breath — for their alcohol concentration. We’re gonna talk about his protocols, the procedure that he can insure the accuracy of that test. And finally we’re gonna bring in somebody called a technical supervisor who can talk to you about how we can rely on that instrument and we can trust the results. Ultimately, the test that the defendant provided that night was over twice the legal limit of alcohol concentration allowed in a person’s system. Our — Our case today is gonna show you a loss of normal mental and physical faculties further supported by a blood [sic] alcohol concentration over twice the legal limit. Ultimately I would say that that night the defendant made a decision. At the end of this case we’re gonna ask you to make a decision and hold him responsible for driving a vehicle. HE COURT: Ms. Keene. MS. KEENE: Thank you, Judge. State. Mr. Ramirez. I anticipate, as the prosecutor said, that you’re gonna hear that a machine, which is a very old machine that Keller has, determined that Nick, the man over here, was two and a half times over the legal limit. .08 is the legal limit. And it said that Nick &emsp; was .19. I want you to remember that as you’re watching videos, watch and see with your own eyes and make your own decision. Police officers can tell you things, but videos — you can just make that decision yourself. If we trusted machines all the time, we wouldn’t need juries. And so you’ll hear about — about this machine, what can create it and what can cause it to say someone is two and a half times over the legal limit. What you’re gonna learn about Nick is that for ten years Nick was a law enforcement officer. You’re gonna learn that for the past four years, prior to this date of him being pulled over, he was a Fort Worth police officer. And you’re gonna learn that he was actually in the DWI unit. Nick for four years — He doesn’t have that job anymore. This got him fired. Sometimes you’re just not guilty of something because you know you’re not, and regardless of whether it’s changed your life and your career pattern, you’re gonna just — you’re coming to court because the machine didn’t know better than what you knew. Nick prided himself as a police officer and chose the DWI task force because he has a very strong belief system about DWIs. Nick watched — was a jailer. He was a jailer for a number of years – drunk &emsp; people come into jails. Nick also saw DWIs, arrested them. In fact, he had spent the holidays, New Years Eve, in the DWI task force working and arresting people for DWI. What you’re gonna learn is that Nick had worked the entire weekend, worked the entire holidays. And on January the 2nd — his family is in Garland, in the Addison area, and he went over to see a family friend and her mom. She was having black-eyed peas. So Nick was gonna go over, see the family friend, see the mom, eat black-eyed peas and cornbread. And he did that. And then he went out with his friend not for a big party night but to go for a full dinner and to play some Golden T at a place called Twin Peaks. And they did that. And it wasn’t a big party night. Nick knows how much he can have, how much he can drink. He knows when he’s safe to drive. Nick didn’t party it down that night. He had a couple of beers. He did. As you’re allowed to do. And then when it was time to go, they went outside, him and his friend, they sat in the car for an additional hour outside of the restaurant where he pours out his heart and they talked about love and girls and life and whatever. And so there’s no alcohol for another hour. They’re just in the car talking. His &emsp; friend doesn’t have any concerns about can Nick drive home. Because Nick all the way in Addison, Nick’s gotta go all the way to Fort Worth. If I’m concerned about Nick, I know he’s a cop, he’s been drinking, he’s gonna spend the night with my mom or spend the night with me. It’s not a big — That didn’t happen because it didn’t need to happen. So Nick then gets in his truck and he begins to drive home. And when he gets to about Airport — not about. It was. — at the north end of the freeway, of the airport where 114 and Airport Freeway hit, back in January of 2013 it was in construction. And two of the lanes had been switched. So, basically, where you would normally exit and go to Airport Freeway now was 114. Nick had ended up on 114. He realizes I’m on 114. This is not where I wanna be. He picks up his phone to figure out do I wanna just stay on 114, can I get home quicker or should I flip a U. And when he does that, he realizes I need to flip a U. I’m gonna go ahead and get back and get onto Airport Freeway. At that same time you’re gonna hear that there was a police officer sitting on the side of the road that saw something that he says that you’ll never see on the video. Every violation he says Nick did &emsp; while driving the car is not captured on the video, because he has the video turned way to the side. He finally turns the video straight, and I don’t see any violations. I see perfect driving by Nick Ramirez. Then he pulls Nick over and he does field sobriety testing. And you can make determination based on what you see in those field sobriety testing. But what you’re going to see is a young man that is a police officer that doesn’t act like the big cocky cop. He’s actually a very humble, good hearted young man who respects authority, does what he’s supposed to do, say yes, sir, no, sir. He cooperates, he talks to him, he does all the field sobriety testing. And even though he’s now been arrested and gets taken down to the police department, maybe this nightmare will end. Let me go ahead and give you my breath sample. And he says let’s go. And you can watch him in the Keller Police Department. That’s who actually picks him up. In the Keller Police Department as he’s making the decision, yes, I’ll give my breath sample, beautiful lighting, is this a person that is two and a half times the legal limit, above it? Because now he’s gonna walk right back in a perfect walk and do a breath test on a very old machine that’s now gonna say he’s two and a half times the legal limit. &emsp; I anticipate that when you look at all of the evidence at the end of this trial that you will say not guilty. You’ll say not guilty because it is simply not proven beyond a reasonable doubt. You may say, eeh, he might have been, he could have been, even if you’re saying he probably was, that’s not proof beyond a reasonable doubt And so I anticipate when this is over and you look at all of the evidence, from the arresting police officer to this actual machine, that you will say that he is not guilty because they simply have not proven this case beyond a reasonable doubt. Thank you. THE COURT: Thank you. Call your first witness. MR. MARCUM: State calls Jimmy Rodriguez. THE COURT: Jimmy Rodriguez. (Witness takes witness stand) THE COURT: Raise your right hand. (Witness sworn) THE COURT: Thank you. If you’ll bring that down and try to speak into the microphone. You may proceed. JIMMY RODRIQUEZ, the witness having been duly sworn, testifies as follows: DIRECT EXAMINATION &emsp; BY MR. MARCUM: Q. Will you please state your name for the record and spell your last name. A. My name is Jimmy Rodriquez. R-O-D-R-I-Q-U-E-Z. Q. And what do you do for a living? A. I’m a peace officer with the City of Keller. Q. And how long have you been a police officer with the City of Keller? A. Thirteen years. Q. What are your current duties? A. I’m a patrol officer. I’m also a training officer, crisis negotiator and bike patrol officer. Q. Are you a certified peace officer in the state of Texas? A. I am. Q. What type of training did you receive before you became a peace officer? A. Went to the academy, the UNT Police Academy, a four-month course, and I got certified in basic police — basic police certification. Q. And when did you go through the police academy? A. Way back in 2002. Q. Have you received any training on driving while intoxicated investigation and enforcement? A. I have. &emsp; Q. And what type of training have you received? A. Various things. Obviously, in the academy we receive the actual DWI detection course. Then after I graduated, I received refresher courses for standardized field sobriety tests. Along with those I’ve also received training on doing blood warrants, DWI detection, various other things of that nature. Q. And in addition to being a patrol officer, you’re also an instructor you indicated? A. Yes, sir. Q. Is part of that instruction instructing other officers on field sobriety tests? A. I’m not a field sobriety testing instructor, but I do discuss DWIs with them, my trainees. Q. Have you had any refresher courses in DWI investigation? A. Yes, sir. Q. And prior to January of 2013, when was your last refresher course? A. That July of 2012. Q. As an officer have you made stops in the past or come into contact with people you suspected of DWI? A. I have. Q. Approximately how many? A. How many? I’ve arrested approximately 300. &emsp; Obviously, I’ve made contact with various other people that haven’t been drinking before. Q. As an officer, has everyone that you investigated for DWI eventually been arrested for DWI? A. No. Q. What do you look for to determine whether someone’s intoxicated by alcohol? A. We look for various things. Are you referring to as far as the driving or you referring to — what? Q. Take me through — You mentioned driving. Take me through the driving behaviors that are consistent with DWI. A. Right. So first thing we note, obviously, is the driving behavior. Sometimes it’s present, sometimes it’s not. Sometimes we pull over people for not driving within their lane, not signaling lane changes, driving on the shoulder, various things that catch our eye. And there’s sometimes where we just pull ’em over for, you know, equipment violations, your headlights are out, taillight’s out, that kind of thing, you know, to let the people know your equipment’s not working. Q. After you’ve made contact with someone, is there anything in particular you look for about the person to determine whether they’ve been drinking alcohol or possibly intoxicated? &emsp; A. Yes, sir. When we make contact, you know, we’re just talking like we are now. But I’m trying to determine where people are coming from, where they’re going. While I’m doing that, I’m watching them, seeing how they behave, looking at their eyes, see if their eyes are bloodshot, you know, sniffing to see if I detect an odor of alcoholic beverage, listening to their speech, if it’s slurred or normal sounding, or if they’re nervous. You know, various things. Q. Let me take you back to January 2nd of 2013. Were you working on that date? A. I was. Q. What were your duties on that date? A. I was patrolling the City of Westlake. Q. As a Keller police officer, why were you patrolling the City of Westlake? A. The City of Westlake is a small town, seven hundred people in population, but with the businesses, it can be up to 50,000. They’re too small to have their own police department, so we have a local agreement with them to provide police services for them. So we would do — anything that we do in Keller, we do in Westlake. Patrol the streets, answer calls, work accidents, write tickets, anything of that nature. Q. As a patrol officer, are you familiar with the &emsp; City of Westlake? A. Yes, sir. Q. On January 2nd of 2013 were you in full uniform? A. I was. Q. Were you in a patrol car? A. I was. Q. Describe your patrol car, if you would, just to give the jury an idea. A. I’m trying to think. I think I was in a Tahoe at that time. Because we drive both Crown Vics and Tahoes. I think my patrol vehicle was a Tahoe. Ours was really cool because they’re all black and they got police on the side, the swoosh, they got the lights on top, lights in the front, lights in the back. But overall it’s a black vehicle. Q. What shift were you working that day? A. We work two shifts. Day shift and night shift. We work 12-hour shifts. So day shift is either six a.m. to six p.m. or seven a.m. to seven p.m. Night shift is either six p.m. to six a.m. or seven p.m. to seven a.m. I was seven p.m. to seven a.m. Q. Just before one in the morning, approximately 12:56 a.m., were you in the area of 1700 State Highway 114? &emsp; A. I was. Q. And are you familiar with that area? A. Very. Q. What city is that area in? A. Westlake. Q. And what county is that area in? A. Tarrant County. Q. At that date, time, and location, did anything in particular catch your attention? A. Yes. Q. And what caught your attention? A. I noticed a vehicle pass my location, and it was, essentially, straddling the left and the rightlane. A portion of the vehicle was mostly in the right lane, part of it was in the left lane. Q. What’d you do — What type of vehicle was this? A. It was a Ford Explorer sport truck. Q. And after you saw that, what did you do next? A. Once I saw the driving behavior, the vehicle moved into the exit lane of the highway, so I put the vehicle in gear to go follow the vehicle. Q. So you put your patrol car in gear to follow this SUV that you’d seen? A. Yes. Q. What’d you do next &emsp; A. Caught up to it and followed it as it entered onto the service road and got on the turn lane to go — because initially it was going westbound, now we’re gonna go back eastbound. Q. Eastbound on 114, correct? A. Yes. Q. And what — Did you follow the vehicle? A. I did. Q. What, if anything, did you see when you followed it? A. As I continued to follow the vehicle, I noted, once we got back on the highway, it drove onto – it crossed the solid white shoulder line onto the shoulder. It did this twice. And it also at one point, I think, drifted left onto the dotted white line that separates the right and left lane. Q. As you’re following this SUV, did you see any violations of the Texas Transportation Code? A. Yes. Q. And what violation, if any, did you see? A. Driving on the improved shoulder. Q. What’d you do next? A. Once I got to a certain point, I went ahead and initiated the traffic lights to pull the vehicle over. Q. And how’d you go about doing that? &emsp; A. We have a little toggle switch on our console that activates the lights, and so I went ahead and flipped the switch. Q. What happened next? A. The vehicle slowed and then pulls off onto the — from the highway onto the exit lane, I guess you could say, and then onto the shoulder and parked. Q. And where did — Where did that SUV come to a rest? A. Just inside Southlake’s border. The border between west side and Southlake. Q. And is that area also in Tarrant County, Texas? A. Yes. MR. MARCUM: May I approach, Your Honor? THE COURT: You may. Q. (By Mr. Marcum) Handing you what’s been marked as State’s proposed Exhibit No. 1. Can you identify what that is? A. It’s a Google Earth picture of pretty much the highway where I work. Q. Are you familiar with that area? A. Yes. Q. And does the area where you first observed this vehicle and where the vehicle came to a stop, is that both shown on that? &emsp; A. Yes, sir. Q. And does that picture truly and accurately depict that area as you know it to be? A. Yes. MR. MARCUM: For the record, I’m tendering to defense counsel. MS. KEENE: No objections to State’s 1, Judge. THE COURT: Admitted. Q. (By Mr. Marcum) If you would, officer, I’ve handed you a red pen. Could you please put an X where this car that you were following came to a stop after you turned on your emergency lights. A. Yes, sir. Hopefully you can see it. Q. Thank you. MR. MARCUM: Move for admission of State’s 1, Your Honor. THE COURT: You need to readmit with the marking on it. MS. KEENE: No objection, Judge. THE COURT: All right. Admitted. MR. MARCUM: Thank you, Your Honor. Q. (By Mr. Marcum) Is that area of 114 a public place? &emsp; A. It is. Q. In your experience as a police officer, was there anything noteworthy about how this vehicle pulled over? A. Yes. Q. And what was that? A. It cantered to the left. Q. What do you mean by that? A. Instead of — most — when you park — When you park and you get pulled over by an officer, you just pull over to the side pretty straightforward. You don’t turn the vehicle left to right. You just stop and wait for us to approach. This vehicle actually stopped and turned to the left just slightly. Q. And in your training and experience, does that mean anything to you? A. Yes. Q. What’s that mean? A. Generally means I’m pulling over an officer. Q. And why are you of that opinion? A. The whole time — In my 13 years I’ve been doing nothing but patrol. So I’ve made countless traffic stops, and I’ve pulled over countless officers. And not all of ’em but a majority — well, can’t say a majority — I’d say about half of ’em, just to let you &emsp; know, hey, hey, buddy, I’m a cop, they do that. Because that’s how we pull our vehicles over when we pull you over. We cantor over to the side. It’s for our protection because it puts the fender into the street so if a vehicle came by too close to us, the theory is it’ll strike the car, our car, and bounce off instead of going towards your vehicle and towards me. And so, basically, the purpose is to deflect the car away from you guys and from myself. Q. Once this SUV was stopped, what did you do next? A. Walked up to it to make contact with the driver. Q. And how many people were in this SUV? A. One. Q. And where was that person seated? A. In the driver’s seat. Q. Fairly — It’s a fairly obvious question, so I apologize for that. A. That’s all right. Q. Do you see the driver of that car in the courtroom? A. I do. Q. Will you please point to that person and describe something that they’re wearing. &emsp; A. He’s to my right and he’s wearing a black jacket, blue dress shirt, and bluish black tie. MR. MARCUM: Your Honor, will the record reflect identification of the defendant Nicolas Ramirez? THE COURT: The record will so reflect. Q. (By Mr. Marcum) What was the first thing that you said to Mr. Ramirez that night? A. I don’t remember. Q. When you approached the vehicle, what was the first thing that you noticed about Mr. Ramirez seated in the vehicle? A. The first thing I noticed when I walked up is that he had his trifold wallet open. Q. And what is his trifold wallet? Describe that. A. Some officers — I don’t, but some officers carry a wallet that opens up three ways. You know, it opens like this. Has a center and, you know, two right flaps. And it’s got the built in cutout for you to put your badge into so you can easily identify yourself as an officer. And that’s what he had. He had it open, and I could see the badge clearly. Q. Did you have any conversation with him while he was seated in the car? A. I did. Q. Tell me about that conversation. &emsp; A. In essence, once I realized he was an officer, you know, I started talking to him, trying to get to the point of if he had been drinking that night or not. Q. As you’re speaking with him, did you see any signs that he had been drinking? A. Yes. Q. Tell me what you observed. A. I detected a slight odor of an alcoholic beverage which is why I asked, you know — Let me look at my report real quick. Q. Do you need to look at your report to refresh your recollection? A. As far as what — I mean, I know I smelled it. His eyes were bloodshot, speech maybe slightly slurred. But, you know, again, I can’t remember exactly what I said. Q. If you need to look at your report to refresh your recollection, please do so. A. Okay. Detected red bloodshot eyes, light odor of an alcoholic beverage on the breath. I don’t know that he had slurred speech. Q. And as a police officer, does what you – what you see on that date, did it mean anything to you? A. It’s a clue that maybe I should proceed to a &emsp; DWI investigation. Q. What did you do next? A. Well, after speaking to him for a bit, I tried to ascertain if he was willing to cooperate with an investigation. Q. Did you ask him whether he’d been drinking any alcohol? A. Yes. Q. Did he tell you whether he had been drinking any alcohol? A. He kept saying he had not. Q. Did he ever at any time indicate that he’d been drinking alcohol? A. Eventually, yes. Q. Did he tell you what he’d been drinking? A. I’d have to look at my report. Q. If you need to refresh your recollection, please do so. A. He did admit eventually to having a couple of drinks of beer. Q. Did he tell you where he was coming from or where he was going? A. He stated he was coming from Dallas, he’d been with his friends and he was headed home to Fort Worth. Q. What’d you do next? &emsp; A. I went ahead and got him out of the vehicle, after he — because he said he would comply. So I got him out. And I went and performed the first test. Q. And when you got him out of the vehicle, did you continue to observe him? A. Yes. Q. Now that you have him out of the car, are you still noticing the same things you saw when he was in the car? A. Yes. Q. And what types of things were those? A. The bloodshot eyes, the odor of the alcoholic beverage, you know. And that was pretty much it. Q. And you indicated that you asked him to get out of the car for some tests. What — Tell the jury about those tests if you would. A. We do standardized field sobriety tests. We do ’em for everyone. It’s, basically, a three-battery test. And so they’re standardized. So that means people in Hawaii should do it the same way as the people in Maine or the people in Texas. So all officers should be performing these test exactly the same way because they’re standardized. Q. And when are these field sobriety tests used? A. When we’re trying to determine if someone is &emsp; intoxicated. Q. And do you have any training in administering these tests? A. I do. Q. When did you receive that training? A. 2002 when I went to the academy. Q. And what did that training involve? A. It’s a 40-hour course in which, of course, we do a lot of case study and actual practicals of performing and administering the test amongst ourselves. You know, pretty much learning step by step what it is exactly that we have to do. Q. As part of your instruction, did you watch others give field sobriety tests? A. Yes. Q. As part of your instruction, did an instructor watch you give field sobriety tests? A. Yes. Q. Did you successfully complete all of your training and field sobriety tests? A. I did. Q. Are you certified in administering field sobriety tests? A. I am. Q. In your experience as an officer, have you had &emsp; occasion to use field sobriety tests as part of an investigation before this particular stop? A. Yes. Q. Approximately how many times? A. If I had to guess, maybe over 200. Q. And you indicate that there’s a battery of three tests. What are those three tests that you use? A. First test we perform is called HGN, the second one is the walk and turn, and the final one is the one-leg stand. Q. What was the first test that you asked the defendant, Mr. Ramirez, to perform? A. First we perform the HGN test. Q. And what — What is the HGN? A. HGN is an acronym for horizontal gaze nystagmus. And so, basically, what that means is – You have an involuntary jerking in your eyes. We all have it. It’s natural. But it’s more pronounced when you introduce a depressant, an inhalant, or PCP. So any kind of depressant like beer or Xanax or inhalants or PCP will make it to where it’s visible to us. And, basically, what we’re doing is we’re using a stimulus to check your eyes on a horizontal plain. And so when we do that, if you had introduced any of those items into your body, you will be able to &emsp; see the jerking, which, essentially, looks like if you had a basketball and your were dribbling it, as you dribble it up against the wall, you’d be able to — that’s what it would look like. Q. And you indicate that depressants cause nystagmus to be visible. Is alcohol a depressant? A. Yes, sir. Q. Have you been certified to perform the horizontal gaze nystagmus as part of a DWI investigation? A. Yes, sir. Q. And did you perform that test on the defendant? A. I did. Q. Did you make any observations about his eyes prior to performing that test? A. Before we begin the test, we’ve gotta first make sure that the subject is a candidate for the test. And what I mean by that is if you’ve received some kind of brain stem injury, your pupils will not be the same. One will be bigger, one will be smaller, or something of that nature. Or if you have, like, a glass eye, obviously, only one eye moves. We need both eyes to move. And so we cannot perform the test on any subjects where they have issues with their eyes or had previous brain stem injury or some kind of major injury where &emsp; something happened to affect that. Q. And did you determine whether Mr. Ramirez was a candidate for the horizontal gaze nystagmus? A. Yes, sir. Both his eyes were equal size and both eyes tracked. Q. What did you do after making those initial observations? A. So once I did those, I knew I could go ahead and test him for the HGN. And so using my light pen I went ahead and began the test. So the way we begin that test is we have the subjects, whoever it is, stand in front of us, put their feet together, rest their arms at their side. And we ask ’em to focus on the light pen. And so I ask them if they’re wearing contacts. If they have, you know, I ask if they’re soft or hard. And it only makes a difference because people, apparently, who wear hard lense contacts your eyes dry out from doing the test if you don’t blink and there’s a slight possibility that one of those contacts could pop out of your eyes. I’ve seen it happen. It looks weird. And so that’s why we give ’em that caveat if you’re wearing soft lense or hard lense contacts. And so once I do that, I go ahead and get my stimulus, which in my case is a light pen. This is a &emsp; different one. The one I had originally was red. But I turn it on. And so I raise it up approximately six — or I’m sorry — raise it up above eye level so I can open up the eye so I can see the eye perfectly well. Because I need to see the eye to detect the clues. And so I raise it up just above eye level. And I do it approximately 12 to 15 inches from their face so we can see. Too close you get cross-eyed, too far back is not that big of a deal. But we try to get in that 12 to 15 range because that’s the optimum range for us to see clues. And so once I do that, then I go ahead and begin the test. Q. And what — What is the first thing that you look for when you perform a HGN evaluation? A. So the first thing I’m looking for is a lack of smooth pursuit. Q. What does that mean? A. If you can imagine your car windshield on a rainy day. You turn on your windshield wipers, in unison they go side to side. No problem. Working perfectly fine. Well, imagine that same windshield on a dry, hot day trying to go across the windshield. It’ll stagger. Well, what I’m looking for is that lack of smooth pursuit, the stagger. If you haven’t introduced any depressants, any inhalants or any PCP into your &emsp; system, your eyes will glide smoothly left to right. If you do introduce any of those things, then it’ll stagger. And that’ll be visible to anyone performing the test. Q. What’s the next thing you look for in the HGN evaluation? A. So once I’ve done that, I go ahead and move on to the next thing which is distinct and sustained nystagmus at maximum deviation. All that really means is I go all the way to the right or all the way to the left to where your pupils are going all the way one way or the other and there’s no white showing whatsoever. So your pupils are as far as they can go. And I hold it in place for four seconds. And then once I do that, I observe to see if, you know, the basketball motion is taking place, your eyes start jerking. Q. Is there anything else that you look for during the HGN evaluation? A. The final thing that we look for when we perform the HGN test is the onset of nystagmus prior to 45 degrees. Again, all that means is this time I’m moving it across the plain, but I’m moving it really slowly. And so it takes approximately about four to 2 five seconds to move from the center of the face to the shoulder. And so I’m, basically, just slowly moving my &emsp; stimulus from one side to the other. And what I’m looking for is the jerking again. And so as soon as I detect the jerking, I stop and I observe it for about another four seconds. The ideal thing is — If I go all the way to the shoulder, that means it’s not a clue. It has to be prior to reaching that 45 degrees, which is, give or take, the shoulder. So if I’m moving it across the plain and I see it before I reach the shoulder, I count that as a clue. Q. And did you perform the HGN evaluation on Mr. Ramirez? A. I did. Q. And what did you observe during that evaluation? A. I observed — You get a clue for each eye. One for the right, one for the left. I observed two clues on the lack of smooth pursuit, two clues on the distinct and sustained nystagmus at maximum deviation, and two clues on the onset of nystagmus prior to 45 degrees. Q. So how many total clues did you see? A. Six. Q. And what’s the maximum number of clues you could see on the HGN? A. Six. Q. And what’s the minimum clues you look for &emsp; during a DWI investigation? A. Four is the minimum. Q. Officer, based on your training and experience, what, if anything, did the defendant’s performance on the horizontal gaze nystagmus mean to you? A. Means I needed to proceed to the next battery of tests. Q. What was the next field sobriety test you asked him to perform? A. Once I do that — If I’m fortunate, I have a line on the road. Most of the time I’m not fortunate, and so we have the person stand, you know, as close as I can to the shoulder. We don’t wanna be in the road, we don’t wanna be exposed. We wanna be in a safe place. And so at that point, if I don’t have the line, what I tell the subject is to imagine there’s a line going directly in front of ’em to infinity. And what I need them to do with that imaginary line in mind is to put their left foot on that imaginary line and to put their right foot directly in front of the left foot, holding it in place, you know, heal touching the toe, their arms at their side and just to not move from that position until they’re told to begin. And then I back off and I tell ’em, okay, now I need you to focus on me, watch me. I’m gonna instruct you on what I want you to do and I’m &emsp; also gonna demonstrate what I want you to do. Q. Does that test have a name? A. It’s call the walk and turn test. Q. And where did you learn that test? A. At the academy. Q. And did you ask Mr. Ramirez if he would perform that test? A. I did. Q. And did you make any observations of him to determine whether he was a good candidate for that test? A. Once we — Once I get the six clues, I go ahead and onto the next step. He was able-bodied, so we were good to go. Q. What are you looking for when someone performs the nine step walk and turn test? A. So like I told you before, I get ’em into place. And so the whole purpose of this test is — it’s a divided attention test. So, essentially, what we’re doing is we’re dividing a person’s attention between doing something physical, like standing in place, and listening to instructions while I demonstrate and instruct them on what exactly it is I [sic] have to do. From that point on I go ahead and demonstrate and instruct what I want them to do. What I tell ’em to do is to go ahead — What they will be doing &emsp; is taking nine heal to toe steps going forward counting each step out loud. And then when they reach that ninth and final step, I show them — I tell ’em to leave the lead foot on the line. I demonstrate the type of turn I want them to do, which you take small steps to turn around and go 180 degrees and go right back down that imaginary line, or that white line, yellow line, whatever it is, another additional nine heal to toe steps. Once I demonstrate that, before I let them begin, I then instruct them on the fact that before they begin, make sure that they keep — look down at their feet, count each step out loud, keep their arms at their side the entire time and once they start the test they should not to stop until they’ve completed it. Then I ask ’em if they understand. If they say yes, then I go ahead and give ’em one final instruction. That the first step they take that counts as one. If they say no, then I’ll go ahead and repeat whatever it is that needs to be repeated so they understand what they need to do. Q. And did he indicate that he understood the instructions that you gave him? A. Yes. Q. And let me take you back to the wallet that you &emsp; observed. Did you have any conversation with the defendant about whether he was a police officer? A. Well, again, I saw the wallet, so it was obvious to me that he was. And so you’ll see in the video I’m talking to him about the responsibility we have as officers, the standard that we’re held to. And so I was trying to determine if I needed — what – what course I was gonna take. Because, again, my wheels are spinning because I don’t wanna be in this position. But I am. And so I’m assuming that he’s a patrol officer as we’re talking, but as we continue our conversation, I realize he’s not a patrol officer. Q. And what, if anything, did you ask him about that? A. Well, you know, I’m pretty good at making inferences. So I pretty much said, “Please don’t tell me you’re a DWI officer.” He nodded yes. I was like, “Okay. Well, then, you know exactly what I’m gonna do.” And so, again, my gears are turning again. So I go, “Okay. Now I gotta approach this a totally different way because he knows exactly what I am going to do.” And so I’m trying to figure out if he will cooperate with me, because he knows all the steps I’m gonna take, every move I’m gonna make. And so I gotta know if he’s &emsp; gonna cooperate or not. Q. And back to the field sobriety test, after you explained it to him. Did he perform the nine step walk and turn test at your request? A. He did. Q. And what, if anything, did you observe while he performed the nine step walk and turn? A. I observed two clues. Q. And what two clues did you observe? A. I observed that he could not keep his balance during instructions and he missed heal to toe. Q. And how many clues are there on the nine step walk and turn? A. There’s a total of eight clues. Q. And is there a decision point on that test? A. There is. Q. What is that decision point? A. Two. Q. And what did his performance on the nine step walk and turn mean to you as a police officer? A. That I needed to continue on to the final task. Q. What is that final task? A. It’s called the one-leg stand test. Q. And is that also part of the three test battery of the standard field sobriety tests? &emsp; A. Yes, sir. Q. Tell the jury about the — the last task if you would. A. Okay. So once we finish that, I get him back in place. And once again, just like we do with the horizontal gaze test, we have ’em put their feet together, arms to their side. I usually tell ’em just to relax. Once again, watch me. I’m gonna instruct you on what I want you to do and I’m gonna demonstrate for you so you don’t have any questions. Then I go ahead and go into the procedural part, the instruction part, and explain to ’em what you’re gonna do now is you’re gonna lift whichever leg you feel comfortable, makes no difference, right or left, it’s completely their choice, but you’re gonna lift it up approximately six inches off the ground, keeping your foot parallel to the ground the whole time, keeping both arms straight, both legs — keeping both legs straight, both arms at your side and then you’re gonna count out loud in this fashion. And the fashion that they’ll count is 1,001, 1,002, 1003. And just keep going until I tell you to stop. So then I asked him, “Do you understand the instructions.” “Yes.” “Do you have any questions.” “No.” Then, again, if they say I don’t understand, then I go ahead and redo it &emsp; again until they do understand, and we proceed. Q. And did you still fully describe and demonstrate this even though he is a DWI — was a DWI officer at the time? A. Yes. Q. And did he perform the one-leg stand task at your request? A. He did. Q. And what, if anything, are you looking for while someone performs that test? A. There’s a total of four clues in this test. One of them being if they place their foot down, another one being if they raise their arms to help keep their balance, another being if they sway a significant sway, and the final being if they actually get to the point where they start hopping on one foot. Q. What, if anything, did you observe as Mr. Ramirez attempted to perform that task? A. I observed all four clues. Q. And what is the decision point on that task, if there is one? A. Two. Q. Were the defendant’s attempts to perform the field sobriety tests recorded on video in any fashion? A. They were. &emsp; Q. And how was that recording made? A. Our vehicles are all equipped with cameras. DL3 industry’s model. It’s a digital format. And so we can activate it three different ways. It can record on the actual console, record on the little monitor that we have that we can view things on, or we have a little toggle switch on our body mic that we can flip and it’ll automatically start recording. And the fourth and final one is when we actually activate our lights, it’ll automatically come on. Q. And was your patrol unit on this date equipped with a video system capable of making a recording? A. Yes. Q. And was it in good working order on that date? A. It was. Q. And did you have an opportunity to review that recording before you testified today? A. I did. Q. And did that recording truly and accurately depict the investigation we’re been talking about? A. Yes. Q. Were there any other recordings on that particular video? A. No. Are you — I’m sorry. Are you referring to, like, other traffic stops? &emsp; Q. Was — Was there a later recording from Keller jail on that DVD as well, on the same DVD? A. Yes. Q. And how was that recording made? A. We go back to the jail. And it uses the same system, but I have to log into a different console, obviously, because that console’s inside the jail. But it’s the same system. And so we just hit record, go down and then do our thing and once we’re done, come back and turn it off. And it all gets logged onto the same system. We used to have use videotapes, but they’re dinosaurs now, so we don’t use ’em anymore. Q. And was there a recording from Keller jail also on that DVD? A. Yes, sir. Q. And were you able to watch that before you testified today? A. Yes. Q. Did both videos appear to truly and accurately depict the traffic stop on one and the interaction at the jail on the other? A. Yes, sir. MR. MARCUM: May I approach, Your Honor? THE COURT: You may. Q. (By Mr. Marcum) Handing you State’s proposed &emsp; Exhibit No. 2. Can you identify what that is? A. Yes. It’s the copy of the video I viewed this morning. Q. And how do you know that’s the same copy that you reviewed this morning? A. It’s got my initials on it. MS. KEENE: Judge, can we approach? THE COURT: Yes. (Discussion at the bench, off the record) (Open court) THE COURT: If you’ll follow the officer in the jury room, please. Have about a ten-minute break. (JURY NOT PRESENT) MS. KEENE: I’m not gonna have any objection to State’s Exhibit 2. THE COURT: All right. MS. KEENE: However, there is a FIFB second recording. At the very end is where he invokes his Fifth Amendment right. And so I would object to that portion of the tape. THE COURT: What? MS. KEENE: There’s two recordings. There’s one on the scene and one in the jail. The second recording on the scene the defendant invokes his &emsp; Fifth Amendment right. THE COURT: Okay. MS. KEENE: It’s at the very end. And I’m gonna get you the place it is in a second. I thought I had it. MR. MARCUM: I’ve got it at 15607. It’s right after the DIC-24 portion. It goes right into the Miranda. MS. KEENE: And so other than that portion, obviously, I’d object to that being played — THE COURT: All right. MS. KEENE: — or introduced into evidence. Other than that I don’t have any objection. I just wanna make sure — THE COURT: Well, that’s sustained. And let’s take a break. (Courtroom break from 10:15 a.m. to 10:25 a.m.) (Open Court, Defendant Present) THE COURT: Bring ’em in. (JURY PRESENT) MR. MARCUM: State moves for admission of State’s proposed Exhibit No. 2, the two videos. MS. KEENE: No objection, Judge. I &emsp; THE COURT: All right. Admitted. MR. MARCUM: I’d like to publish the initial video at this time, Your Honor. THE COURT: You may. MR. MARCUM: Thank you. (State’s Exhibit No. 2 published.) Q. (By Mr. Marcum) Officer, what are you doing right now? A. I am conducting an inventory of the vehicle, searching the vehicle. I’m gonna be confiscating his weapon, clearing it, making sure it’s not loaded and then I put that weapon in my vehicle. The officer that was with me, that’s the corporal. So I asked for a supervisor. He’ll do the actual inventory and tow sheet of the vehicle. Once I’m done searching the vehicle, I’ll go ahead and leave the scene. Q. And where is Mr. Ramirez while this is going on? A. He is in the backseat of my vehicle, the vehicle that’s recording. Q. Thank you. Where are you traveling in your patrol vehicle at this time? A. I believe that’s Keller Parkway. Q. Where are you headed? &emsp; A. To the City of Keller Police Department jail. Q. Are you driving? A. I am. Q. Who else is in the vehicle with you? A. The defendant. (State’s Exhibit No. 2 stopped.) Q. (By Mr. Marcum) Officer, what happened at the beginning of that video with your camera angle? A. Well, because of where I parked off the road quite a bit. And so in order for me to capture the road itself, I have to angle it to the side. And I zoom in so you can get a real good view of the actual roadway. The problem was on this video normally zoom out so you can see everything, but for whatever reason I did not until I looked down to see that I needed to record and realized I hadn’t done that yet, so that’s when I had to read just and correct that. And so that’s why you don’t see some of the driving behavior on video. Q. And why did you call for backup? Why did you request another unit? A. Any time we’re gonna search a vehicle, arrest someone, search a building, do anything of that nature we always — our policy is that we require two officers to be there. Q. And did you call on anyone in particular for &emsp; this stop? A. I did. Q. Who was that that you called out? A. The on-duty supervisor. Q. And why did you call up the on-duty supervisor? A. Due to the circumstance. That the subject I was gonna test was a police officer. Q. And is that consistent with your department policy? A. Yes. Q. As an officer how many people have you come in contact with who have been intoxicated by alcohol? Not just in a DWI context, but any context. A. Easily over 1,000. Q. And in your experience as a police officer, have you had the opportunity to observe people who were intoxicated? A. Yes. Q. Based on your training and experience, as well as what you observed at the scene this day, did you form any opinion as to whether Nicolas Ramirez was intoxicated? A. Yes. Q. And what was that opinion? A. That he was. &emsp; Q. And did you base that just on his driving? A. No. Q. Did you base that just on the admission that he’d been drinking? A. No. Q. Did you base that just on the field sobriety tests? A. No. Q. If you would, tell the jury what you based your arrest decision on in this case. A. The totality of everything that I saw. Everything combined. You know, we go every step of the way. We don’t jump to conclusions that someone’s intoxicated. We have to, you know, prove that they are. We have to show to ourselves that, yes, this subject is intoxicated. Because not everybody I encounter that has been drinking, that is behind the wheel is intoxicated. So I have to make sure before I arrest ’em that they are indeed intoxicated. And so that’s why we have the three-tier system of the SFSTs. So we know, okay, this — this step is, I go on to the next one, go on to the next one, go on to the next one. So combine that with the way the person was driving along with their appearance, their behavior, whatever, combine all that together we have a solid case for DWI. &emsp; Q. And as applied to this case, what specific things led you to the conclusion that Mr. Ramirez was intoxicated? A. Again, the driving behavior, making contact, the SFSTs and his admission that he had consumed some alcoholic beverages. All that combined. Q. He was placed under arrest, correct? A. Yes, sir. Q. And what happened after he was placed under arrest? A. As you saw in the video, he was placed in my vehicle. After I searched the vehicle for additional evidence that would support DWI, I left the scene, transported him back to our jail. And then once we got into our jail, we followed some of the jail procedures. Q. Did you offer a breath test to the defendant? A. I did. Q. How did you go about offering him that breath test? A. In our jail we have an area where we can conduct DWIs in a controlled setting in case it was too windy, too rainy, it was bad weather out in the field. Then we take ’em inside to a controlled setting and we can do the tests there. In that particular room is where we also go in and read a statutory warning form &emsp; that the State provides and makes us read to them to give them the options — or to make them aware of what the options are as far as giving a voluntary sample. Q. What is a DIC-24 form? A. It’s a statutory warning. Q. And what do you do with that form? A. I hand the subject a copy of the warning so they can see what it is. I have the same copy. And while recorded on video I’ll read it verbatim, word for word. And I ask the subject — either they can listen or read along. Makes no difference. And I read the entire document. And then at the end I request the sample of breath. Q. And did you read the DIC-24 form — A. I did. Q. — in this case? A. Yes, sir. Q. And where was that done? A. At the Keller Police Department jail. MR. MARCUM: May I approach, Your Honor? THE COURT: You may. Q. (By Mr. Marcum) Handing you State’s proposed Exhibit No. 3. Can you identify what that is? A. Yes, sir. Q. What is that? &emsp; A. It’s the statutory warning. The DIC-24. Q. And is that a true and accurate copy of the one that you read to Mr. Ramirez on this date? A. It is. Q. And does that form have your signature? A. It does. MR. MARCUM: Tendering to defense counsel. MS. KEENE: No objection to State’s Exhibit No. 3, Judge. MR. MARCUM: Move for admission. THE COURT: Admitted. MR. MARCUM: Your Honor, at this point I’d also like to publish the portion of the video, the other portion that was admitted of the interaction in the jail. THE COURT: You may. (State’s Exhibit No. 2 published.) (State’s Exhibit No. 2 stopped.) Q (By Mr. Marcum) So after you read him the form, did he agree to take a breath test? A. He did. Q. And what did you do next? A. I handed him off to the intox operator and went into the police department to go ahead and start on my &emsp; report. Q. Who was the intox operator? A. Officer Joe Salvato. Q. And is he an employee of Keller PD? A. He is. Q. And were you present for any breath testing that occurred? A. No, sir. Q. Taking everything that you observed on this night — the way he was driving, his appearance and demeanor, the performance on field sobriety tests — based on your training and experience as a police officer, was Nicolas Ramirez intoxicated at the time he was driving? A. Yes. MR. MARCUM: Pass the witness, Judge. THE COURT: Ms. Keene. CROSS-EXAMINATION BY MS. KEENE: Q. I just have a few questions. Actually, I have a lot of questions for you. Is that okay? A. Yes, ma’am. Q. How often do you watch South Park whenever you’re hanging out on the side of the road? A. Depends. &emsp; Q. Tell the jurors what it means — depends. A. Well, in this instance I wasn’t really watching it so much as listening to it. Because, again, I was on the road. It gets really boring out on the highway, especially that late at night. And so I’ll listen to some stuff or I’ll listen to the radio or whatever. Q. And this was actually on a DVD player? A. No. It was on my phone. Q. So it was on your phone. So it was a video? A. Right. Q. And what you’re telling the jurors is you were playing the video of South Park sitting on the side of the road when this occurred? A. Correct. Q. And that’s actually what we hear. We hear Carmen or — one of the little characters at the very beginning of this tape, do we not? A. Yes, ma’am. Q. And so you’re watching a video — or listening to it on the side of the road? A. Yes, ma’am. Q. And how often do you do that whenever you’re on patrol? A. Not that often. Q. Is that something that the Keller taxpayers are &emsp; okay with, you watching South Park whenever you’re getting paid to watch the road? A. No idea. Q. Is that something that your supervisor is aware of? A. No. Q. Is that something that is in your protocol that is okay for you to do? To watch videos while you’re sitting on the side of the road? A. If I’m watching it, no; if I’m listening…That’s what I think. Q. So you have a video that you just listen to? A. It plays on the phone and I listen to it. Yes, ma’am. Q. You recall testifying about the facts of this case right here in an administrative law – or administrative licensing hearing? A. Yes. Q. And you recall that testimony back in April the 3rd of 2013? Just a couple months after you arrested Mr. Ramirez? A. Yes. Q. And you recall when you were asked about what you were doing and what that noise was on the tape that you told ’em that you — you didn’t tell ’em about South &emsp; Park, did you? A. No. Q. In fact, you told ’em that you were listening to the radio. Is that correct? A. Yes. Q. So why did you tell them that you were listening to the radio and then you tell these jurors that you were listening to South Park? A. Because I was playing the audio through the radio. Q. Okay. You were being very technical then. So you were playing your audio on your phone through the radio? A. Right. It has a audio jack on it, so yes. Q. All right. Well, let’s start with while you’re listening to South Park. And this particular episode — You’re actually 17 minutes into this episode. Does that sound about right? You’re over halfway done? A. I don’t recall, ma’am. Q. But certainly you’re paid to sit out on the side of the road. And you’re supposed to be doing what when you’re out on the side of 114? A. Observing traffic. Q. And so what you’re telling the jurors is you were observing traffic? &emsp; A. Yes, ma’am. Q. And you were looking for what? A. Anything that would catch my eye as far as a traffic violation of any nature. Q. I think you talked about that you were on a detail for speeding and vehicle equipment violations. I believe you said that in your report – A. Yes, ma’am. Q. — is that correct? A. Yes, ma’am. Q. And did you have your radar on since you were looking for speeding? A. Yes, ma’am. Q. And was anything about Nick Ramirez’ speed a problem? A. No. Q. So what caught your attention was that he was changing lanes? A. Yes. He was, like I said, in the middle between the two lanes. Q. Well, when you change from one lane to another, at some point you have to be in between two lanes. Correct? A. Yes, ma’am. Q. And, in fact, Nick had his blinker on that he &emsp; was changing lanes, going from the left lane to the right lane. Correct? A. If it’s on the video, yes, ma’am. Q. Well, a lot of it’s not on the video, correct? A. Yes. Q. And it’s not on the video because your camera was not faced towards the road which you could, quote, see. Correct? A. It was initially, but, like I said, I did not zoom out like I normally do. Q. Well, we can’t see — if it was faced towards the road so that we could see what you see whenever the cars come by, you can’t see the straddling of the road that Nick is supposedly doing. Correct? A. Now that you do see. Q. Okay. And we’ll go back over it and we’ll go through that then. All right? A. That’s fine. Q. And he has his blinker on? A. I’d have to look at it again, ma’am. Right now, at this moment I cannot recall. Q. All right. You did not put on any of your police reports that Nick was weaving. Is that correct? A. Correct. Q. And certainly when someone is weaving in the &emsp; lanes, that’s a problem that police officers look for when they’re looking for intoxication? A. Yes, that’s one of the things we look for. Yes, ma’am. Q. And you did not put in your police report that Nick failed to maintain a single lane which, in essence, is weaving? A. The way I would consider weaving is weaving within the lane. Actually not maintaining a single lane is actually crossing over the lines that are on the roadway. Q. In fact, you never saw Nick doing that, correct? Failing to maintain a single lane. A. No. Q. You never saw him driving in an unsafe manner? A. Aside from driving on the shoulder? Q. How far did you see him drive over on the shoulder? A. Approximately a foot. Q. And did you keep notes of this or write it down later so that you could remember and testify to it? A. Yes. Q. Did you bring those notes with you? A. No. Q. Where are those notes? &emsp; A. I’m sure in the field pad that I have somewhere. Q. Okay. Do you recall when you testified at the administrative licensing hearing about whether or not you took any notes, when they were asking you for your notes in April of 2013? A. Right. The notes I take are not necessarily as I’m driving. It’s after I get back to the station and work on my report. Q. Well, do you recall telling that Judge that you didn’t keep any notes, when they were asking you for your notes? A. Right. I don’t keep ’em. I shred everything after I write it down. Q. So you write things down and then you shred ’em? A. Yes. Q. All right. All right. When you first noticed Nick, was he on a curve? Does the road curve at that point there on 114? A. Yes, ma’am, it has a slight curve. Q. And so it has a curve and then it goes up into the exit, correct? A. Yes, ma’am. &emsp; Q. And so at the slight curve, is that where you noticed him straddling two lanes? A. Yes. Q. And then did he ultimately exit? A. He did. Q. And when he exited, did you then begin to get behind him? A. I did. Q. And there are a couple of times on your videotape, even though it’s not faced correctly, that you can still see Nick’s car, correct? A. Correct. Q. And when you can see his car, from what you can remember, Nick was driving safely as he took a U-turn, correct? A. Yes. Q. Nick yielded at the yield sign, did he not? A. He did. Q. And he went left and had a blinker on? A. Yes. Q. And when he came up to the next yield sign — because it’s one of those — he chose the — he chose the right lane to do — friggin do a U-turn, didn’t he? A. Yes. Q. In fact, when you get to that particular cross &emsp; section, you’ve got a number of different choices. You can do the mandatory U-turn. What are those called in Texas? A. Turnaround? Q. I mean, once you get on it, you’re gonna flip a U, period. You don’t get to ever turn right, correct? A. Right. Q. So he could choose that. And that’s the one he chose? A. Correct. Q. And he could have chosen to go straight and turn left and then turn left again. There were a number of different choices, correct? A. Yes, ma’am. Q. And whenever he did that U-turn and he gets to where now there’s more traffic coming towards him, he yielded, did he not? A. He did. Q. And he used his blinkers appropriately in this case? A. Yes, ma’am. Q. And then he gets back on the freeway, correct? A. Yes, ma’am. Q. He’s never driving too slow, he’s never driving too fast? &emsp; A. Well, if you look on the video, he did speed up but not too fast. But, yeah, he sped up from where we were. Q. Well, he sped up to get on the freeway. He’s accessing to the freeway, correct? A. This is after we were already on the freeway. As soon as we passed the overpass, reviewing the video again, he sped up. You can hear my engine revving. Q. Did you — When you first approached Nick, did he talk to you about the fact that he was looking at his phone to try to figure out where he was, if he wanted to do a U-turn or keep going straight? A. It was mentioned, yes, ma’am. Q. And he talked about there being a lot of construction out there at 114 and Airport Freeway? A. Correct. Q. And that’s a true statement. There was a lot of construction — A. Absolutely. Q. — at that time? A. Yes, ma’am. Q. And people who had had nothing to drink, in broad daylight, certainly made the wrong exit at that time period, during that construction? A. Yes, ma’am. &emsp; Q. That’s nothing that we can use against Nick on this particular night because of the situation of the roads. Is that fair to say? A. Yes, ma’am. Q. And so he actually showed you the phone and showed you that the phone was on the maps; is that correct? A. I believe so, yes, ma’am. Q. So you were able to see that had there been any out of the lane, which we can’t see, that it certainly also could have been possible that it’s because he was looking down at the maps? A. Correct. Q. You put in your police report that it took Nick 25 seconds to pull over. A. Yes. Q. Why would you put that in your police report? A. Because that’s the time it took for him to pull over. Q. And why would that be important to put, it took 25 seconds to pull over? A. Some people pull over a lot sooner than that. Q. But why would it be important, if it took him 25 seconds, for you to note that in your police report? A. That seemed excessive to me. &emsp; Q. So would that be like somebody who’s too intoxicated to realize there’s a police officer behind ’em kind of idea? A. It could be. Q. Well, if we watch the videotape and it turns out not to be 25 seconds — Where did you come up with 25 seconds? A. Using the time stamp on the video. Q. Okay. Well, we’ll just watch that together and figure out if it was 25 seconds or not. Whenever he pulled over, did he pull over safely? A. Yes. Q. And when he pulled over, he actually pulled over more safely than most motorist do. Is that correct? A. He pulled off onto the grass. Yes, ma’am. Q. And that is for both of y’all’s safety really. Is that correct? A. Yes. Q. But certainly whenever a police officer pulls you over — If I just pull over onto the shoulder and now the police officer has to walk to the driver’s side, you could be in a situation where you are very close to traffic that’s coming flying by you. Is that correct? &emsp; A. Yes, ma’am. If that’s the case, that’s when I make the passenger side approach. Q. Because that’s for your safety? A. Correct. Q. But Nick went all the way off the shoulder and went into the grass and then slightly tilted his car, correct? A. Yes, ma’am. Q. Now, that also is just for your safety. You now can see the driver and see everything that he’s doing as you’re approaching him, correct? A. Yes, ma’am. Q. And that, as a police officer, is a much more comfortable situation to walk into than in a dark night where you can’t see the driver, you don’t know what’s going on in there. Is that correct? A. Yes, ma’am. Q. And so when you see that, that is certainly for you — You said it was a sign that, hey, I’m a cop. But it’s also just a safety measure for you as well as for Nick. Is that correct? A. Yes, ma’am, it can be. Q. Well, it is. It’s a lot more safe for you to walk up to a car that’s off the shoulder and tilted slightly so you can see the occupant in it, correct? &emsp; A. Yes. Q. And it’s a lot more safe for the car to be slightly tilted and off the shoulder? A. Yes. Q. Okay. Whenever you walked up to the car, you noted in your police report he had his seatbelt on. Is that correct? A. Yes. Q. You noticed — when he got — in the – in the — jurors saw this too. When he got out of the car, was he okay when he got out of the car? Was there anything noted that made him seem like he was two and a half times over the legal limit? A. No. Q. He got out fine, didn’t he? A. Yes, ma’am. Q. And we’re talking about a truck, correct? A. Yes. Q. You testified that you smelled a slight odor of alcohol. Is that correct? A. Yes, an alcoholic beverage. Yes, ma’am. Q. You did not — You’ve certainly been in situations where you’ve walked up to cars and, man, it just hits you right when the window’s rolled down. Correct? &emsp; A. Sometimes right at the fender. Yes, ma’am. Q. Actually when you walk up, even though you’re not at the window, you can smell alcohol, correct? A. Correct. Q. In Nick’s case you testified there was just a slight odor. You testified that he had bloodshot eyes. That was something that you marked down as a sign of intoxication. Is that correct? A. That’s a clue that I noted in the report. That’s part of the report. Q. But you also noted and asked him did he have on contact lenses. Is that correct? A. Yes, ma’am. Q. And in your experience, do people who have contact lenses on all day, 10, 12 hours, sometimes have bloodshot eyes? A. I cannot speak to that since I do not wear them myself and I don’t know anyone in my immediate family that does. So I cannot really say. Q. What was the temperature that night? A. Have no idea. Q. It was pretty cold? A. Yes, ma’am. You could see my breath and his breath when we were talking. &emsp; Q. And so usually when you can see — If I told you that looking it up that it was 31 degrees at about midnight when you — What time was this arrest or what time are you pulling him over? A. I believe it was just after 1:00. Q. So right at twelve? A. Yeah. Near 1:00. Q. About one a.m. that it was 31 degrees. Would you dispute that? A. No. Q. In fact, when you — It’s below freezing for you to be able to see your breath; is that correct? A. Yes. Q. And at no time was Nick given his coat? Didn’t ask for it. But did he look cold when he was out there on the side of the road? A. He did. Q. And how does being cold to such an extent — How long was he out on the side of the road? A. Quite a while. Q. So there was actually a gap between the horizontal gaze nystagmus test and the one-leg stand and the walk and turn, was there not? A. Yes, ma’am. Q. And so we can look back and go back through it &emsp; and get the time frames on that. But Nick’s standing outside without his coat on for a good 10, 15 minutes, is he not? A. Yes, ma’am. Q. And he is — He’s little on the video, but he appears to be very cold, holding his arms like this, correct? A. Yes, ma’am. Q. In fact, when the whole thing’s over, he said “Can I get my coat,” did he not? A. He did. Q. In fact, Nick was the entire time differential to you, was he not? A. Meaning? Q. I think — can you — Did you feel like he respected your authority? A. Yes. Q. And treated you with the respect that a citizen, whether he’s a cop or not, should treat a police officer whenever they’re pulled over? A. Yes, ma’am. Q. He was not a belligerent — some belligerent drunk person? A. Thank God, no. Q. Right. And he was not calling you names? &emsp; A. Correct. Q. He was very cooperative with you? A. Yes. Q. And when — And so he’s not interrupting you when you talk. He’s listening to you, doing what you ask him to do, correct? A. Yes, ma’am. Q. And so it wasn’t until the whole thing was over — you know, we can see that he’s freezing – that he asked for a coat? A. Correct. Q. And you actually went and got his coat for him? A. I think so. Q. And so when he is doing his — his field sobriety testing, he has been out there for at least five plus minutes in the freezing cold, correct? A. Yes. Q. And what does a normal person act like whenever they’ve been outside and it’s freezing cold? If they’ve had no drinks or not, how does that affect their ability on balance and being able just to stand up straight, on swaying? A. I guess it makes ’em a little stiff footed. Q. It can do a lot of different things to the human body, can’t it? &emsp; A. Yes. Q. In fact, if a person has had any sort of surgery, when you’ve got them standing out in freezing temperatures for more than five minutes, that can also cause stiff legs, stiff backs, stiff different things, correct? A. Yes, ma’am, it can. Q. It’s not the ideal conditions to do field sobriety testing, although it’s the only ones you had. Correct? A. Correct. Q. Certainly ideal conditions would be in a controlled environment such as this courtroom today? A. Correct. Q. Or your police station on January the 2nd of 2013. Correct? A. Correct. Q. Tell the jurors. Did you do any field sobriety testing of Nick in your police station where it was a controlled environment? A. I did not. Q. Did you do any — any walk and turn that we could watch on a camera where he’s not freezing to death? A. I did not. &emsp; Q. Did you do any one-leg stand, whenever he’s not freezing to death, on a camera where it’s light? A. No, ma’am. Q. The only ones you did were the ones that were out there on the road. Is that correct? A. Yes, ma’am. Q. All right. Let’s talk about — Oh. Actually, Nick told you about having a weapon, did he not? A. Yes. Q. And that’s a — that is a — How would you describe that? If somebody tells you I’m licensed to carry or I’m a cop, I’ve got a weapon in the car, how do you consider that as a police officer? A. It’s an officer safety issue. And that’s why I asked him where it was. And he said it was in the center console. Q. Okay. And so that’s something that as an officer safety issue is important to know so that you know where it is, if it’s secured in case he carries it in a boot or whatever? A. Correct. Q. Or in case he — wherever. Wherever Texans and Texans that are police officers would carry a weapon, that’s something you would want to know, correct? A. Yes, ma’am. &emsp; Q. And so you were made aware that the weapon was in the car and felt confident in him telling you that? A. Yes. Q. Okay. You talked about that horizontal gaze nystagmus test. Now, that’s the test whenever –whenever you used the pen and you moved it back and forth with the eyeball. Is that correct? A. I’m sorry. Can you say that again? Q. The horizontal gaze nystagmus test is where you were — You can’t see anything on the video, is that correct, except for you standing and Nick standing in front of you? A. Correct. Q. Is there any reason why you did not bring Nick up to the front of your squad car so that we could see exactly how you were administering the horizontal gaze nystagmus test to know whether or not you were doing it correctly? A. No. I went ahead and did that test. Then once I completed that one, that’s when I went back to the vehicle to zoom in. When I made the stop, I didn’t think to zoom in. I didn’t think I had to, but, you know, that’s the way it turned out. Q. Okay. Well, would you agree with me that we cannot tell on your video whether or not you even did &emsp; the test correctly? A. The video is the video, ma’am. Q. We certainly cannot tell — We can’t look into his eyes and we can’t see any jerking motion, correct? A. Right. Q. It is more of a subjective as opposed to an objective test? A. Yes. Q. So it’s a test that you tell us about but we can’t verify or unverify? A. Correct. Q. There are standards on how you are supposed to administer this test; is that correct? A. Yes, ma’am. Q. And those standards are actually put out by the National Highway Traffic Safety Administration? We call it N-H-T-S-A. A. NHTSA? Q. Yes. NHTSA? A. That’s what we call it. The same. Q. And that — That’s the national group that, basically, as you said, does standardized tests that goes throughout the state of Texas, Maine and whoever else — whatever other states adopted it. Is that correct? &emsp; A. Yes, ma’am. Q. And does the NHTSA say that you are supposed to stand above the person that you are giving the test to? A. Stand above, ma’am? Q. Yeah. Is your — is your — is your — Are you supposed to be above them? A. You can be above ’em. Q. Does the NHTSA say you should position the stimulus approximately 12 to 15 inches from the suspect’s nose and slightly above eye level? A. Yes, ma’am. Q. And so on the video the only thing we can tell is that you are under him, because you’re — you’re standing on the gravel, on the — on the dirt area and you’ve got him positioned on the concrete? A. Yes, ma’am. Q. Is there any reason why you didn’t wanna be level so you could be above him, be slightly above him, for the horizontal gaze nystagmus? A. Are you referring to my person or the actual stimulus? Q. I’m referring to your person. A. Is there a reason? No, ma’am. Q. Whenever you did and used your report, do you recall — When do you make your report and type it up? &emsp; A. Immediately after — I went back into the police station, and I went ahead and secured the weapon, boxed it up, put it into evidence, and then I began to — began the report. Q. Okay. So you actually did it that night? A. Yes. Q. This is not a report that you produced six months later? A. No, ma’am. Q. This is a report you produced that night? A. Yes, ma’am. Q. And tell the jurors. You said that you marked him off for having nystagmus prior to 45 degrees? A. Correct. Q. And so that means that his eyes would have been jerking before he got to your shoulder? A. Right. Q. Right? A. Yes, ma’am. Q. So that’s important in NHTSA because they say, well, you actually might have some alcohol in you if your eyes start jerking before you get to 45 degrees. Is that correct? A. Yes. Q. And so what we do know is that all of us have &emsp; some sort of nystagmus in our eyes, period. Correct? A. Yes, ma’am. Q. We know that certainly fatigue can cause nystagmus or the jerking of eyes? A. In — in the manual, yes. If you hold the stimulus too long — fatigue will hit if you hold it over 30 seconds. Q. So, I mean, you can create horizontal gaze nystagmus? A. If you hold it in place for a long period of time, yes, ma’am. Q. And we’re talking about 30 seconds? A. Correct. Q. We’re not talking about 30 minutes? A. Correct. Q. But certainly the clue is to have it prior to 45 degrees. Is that correct? A. Yes, ma’am. Q. And it’s not about being at 45 degrees? A. Correct. Q. It’s certainly — All of us at some point will have — our eyes will jerk if they strain and you’ve got ’em held to maximum deviation? A. There’ll be some slight jerking possible, yes, ma’am. &emsp; Q. All right. Now, in your report what you talked about with Nick was not that he had any nystagmus prior to 45 degrees. Isn’t that correct? A. I’m sorry? Q. In your report you talked about Nick having nystagmus at 45 degrees; is that correct? A. Yes, ma’am. Q. And so you did not find that he had had nystagmus prior to? A. No. He did. I mismarked one of the boxes. Q. Well, I’m not talking about mismarking a box. We’re gonna get to the mismarked box. A. Okay. Q. I’m talking about what you actually typed in. This isn’t no computer messing things up. This is you typing in what you saw. I’d ask you to look at page 2 of your narrative. A. Okay. Q. The fifth paragraph. Second line of the fifth paragraph. A. What’s it start with now? Q. It starts with “…onset of nystagmus at 45 degrees.” Starts with “And I conducted HGN on the subject.” That paragraph. &emsp; A. Yes, ma’am. Q. That second line. A. Okay. Q. Would you agree with me that when you typed it up, you said that you saw an onset of nystagmus “at” 45 degrees? A. Oh, yes, ma’am. I see what you’re saying. Q. Well, that’s what you said. A. That’s what I typed. Yes, ma’am. Q. And there is a big difference between having eyes jerking at 45 degrees and having eyes jerking prior to 45 degrees, correct? A. Yes, ma’am. I don’t know why I typed it that way. I never do, prior to 45 degrees. That’s a mistype on my part. Q. Okay. But this is something that you sat down and typed in, correct? A. Yes, ma’am, I did. Q. And so this is something you’ve been trained to know; that the key words are prior to 45 degrees. That’s something y’all get tested on, correct? A. Yes, ma’am. Q. So that’s like — I mean, that’s just common. When you say 45 degrees, you go prior to 45 degrees. Correct? &emsp; A. Yes, ma’am. Q. But yet here you put “at” 45 degrees. A. Yes, ma’am. It’s a fresh report. I typed it up, and obviously I mistyped it. Q. Okay. And so then later, in your DWI case report, when you typed it up, on page 4 — That would be on your DWI case report. Because you have a narrative, then you also have a different one called DWI case report? A. Yes, ma’am. Q. On that page 4, if you’ll look — 1, 2, 3, 4, 5, 6, 7, 8, 9 — 10 paragraphs down — A. Yes, ma’am. Q. — you again put onset of nystagmus “at” 45 degrees, correct? A. Yes, ma’am. Q. And so in two different places in your report you were very clear in your report that it was “at” 45 degrees and not prior to, correct? A. Yes, ma’am. Q. And so in two different places in your report you were very clear in your report that it was “at” 45 degrees and not prior to? A. Correct. Because I cut and paste. Q. Because what? &emsp; A. I cut and paste it to the document. Q. Okay. So you cut and paste. So you did it wrong the first time and then you cut and paste it wrong the second time? A. Correct. Q. But you know the difference between “at” 45 degrees nystagmus, because that’s me, that’s any of the jurors, and “prior to,” correct? A. Yes, ma’am. Q. But you’re saying that’s just a mistake? A. Yes. Q. And so you counted it as a clue even though you didn’t write it as a clue? A. Yes. Q. And so today you remember that it’s a clue even though you wrote it down something different? A. No. It was a clue at the time. I miswrote it on the report. Q. Is it always a clue for anybody that you do the — the — the pen with? A. No. Q. You always find six clues? A. No. If that was the case, I’d have, like, a million DWIs. Q. Well, certainly in this case, when you typed up &emsp; your report, you put down that there were five clues; isn’t that correct? A. I did. Q. And was that another one of your mistakes? A. It was. I mean, I thought I clicked on the — ’cause these are auto field populated boxes, and I guess I missed that one. Q. Well, I mean, how do you miss it? If — if — if a person’s eyes do not track normally, whatever the nystagmus is, it should be an even number, correct? A. Not always. Q. Okay. So in this case, when you saw five as opposed to six on your calculations, that didn’t red flag you that I clicked something wrong? A. Yeah. Well, Obviously I didn’t pay attention and neither did my supervisor who approved the report. Q. Well, the reality is as a government employee there are oftentimes that all of us — doesn’t have to be a government employee — make mistakes, correct? A. Yes, ma’am. Q. There are oftentimes that our bosses make mistakes, correct? A. Yes. Q. There are oftentimes proofreaders don’t get it right, correct? &emsp; A. Yes, ma’am. Q. And you certainly are not infallible as a police officer, correct? A. Not at all. Q. And so these are two instances that we can show the jurors that you made a mistake just in writing your report? A. Correct. Q. You also noted that — Talk to the jurors about what vertical nystagmus means. A. As far as testing? Q. Yeah, whenever you’re testing. You also – You went horizontal. So you go to the right, you go to the left and then do the eyes jerk as they go back and forth. You also test up and down, vertical, correct? A. Yes, ma’am. Q. And in Nick’s case you said you did not see any nystagmus at all on the vertical? A. Correct. Q. So there was actually no jerking of his eyes when he went up and down, correct? A. Correct. Q. And you certainly know from NHTSA, from your training, that the higher degree of impairment it is more likely to have vertical nystagmus? &emsp; A. Correct. If a subject is at their peak of intoxication, in other words, they’ve never been that intoxicated before, when you perform the vertical nystagmus test, if you observe it, what you’re observing is that’s the most intoxicated they’ve ever been. Q. You know, actually the NHTSA doesn’t say anything about never having been there before. They call it “high doses of alcohol for the individual” is what vertical nystagmus shows. A. Yes, ma’am. Q. So high doses of alcohol of an individual has nothing to do with if they’ve had a ten times high dose or one high dose? A. Correct. Q. It’s just a high dose of alcohol for an individual? A. Yes, ma’am. Q. So if a person has, basically, certainly beyond the legal limit, you’re likely to see the vertical nystagmus? A. It’s individual. Depending on how often that person drinks or their tolerance. The nystagmus will be visible only if they’re at a high dose. Q. And so in this case with Nick no vertical nystagmus? &emsp; A. Correct. Q. And certainly you know that with the horizontal gaze nystagmus — I know you said “at” 45 degrees, but we know that the higher the impairment the sooner nystagmus will begin, the jerking will begin, before you get to 45 degrees? A. Correct. Q. And you’re saying you saw that, but certainly your report does not reflect that. Is that correct? A. I’m sorry, but, yes, that’s true. Q. You talked to Nick about whether or not he wore contacts whenever you were doing this nystagmus testing. Is that correct? A. Yes, ma’am. Q. And that’s something that the standards that the NHTSA, the national standards, say to ask someone before you do the testing? A. Yes, ma’am. Q. And so when they say yes, what does that mean? A. Means we jot it down on the report that they wore contact lenses. Q. Okay. And you talked to the jurors about it was important for you to find out whether or not it was a hard or soft contact lense? A. Yes. Because when I first started in the – in &emsp; the field, I guess, people could either wear hard or soft lenses. I don’t know now. I don’t wear contact lenses. Q. Well, you testified to them that you always ask the people whether or not they wear hard or soft lenses — A. Yes. Q. — correct? A. That’s how I was initially trained. Yes, ma’am. Q. And did you do that on the videotape that we all watched? A. I don’t think I did. Q. Okay. So whenever you say you always ask ’em for that, that was certainly nothing that we saw together on the videotape? A. Correct. Q. So whenever you testify you always do that, that was just not a correct statement? A. Correct. Q. So whenever he says yes, you just write it down. You don’t know really what it means. You just know that the national standards say if you’ve got contacts, we need to ask that and we need to check the box and let somebody else figure out why that means &emsp; something? A. All I can say from my experience is I have had somebody’s contact lense pop off. That’s the only thing of significance to me. Q. You know, and the national standards also talk about “examples of conditions that may interfere with the suspect’s performance of the HGN test.” So you know that there are things, conditions, that can interfere with the performance of someone on the HGN, don’t you? A. Yes, ma’am. Q. What sort of things would do that? A. Inclement weather, any kind of distractions, outside distractions. Unless they have, like, a handicap of some sort. Q. Certainly, as you said, inclement weather. And that was true out on the scene, was it not? A. It was cold. Yes, ma’am. Q. And so we know that the weather conditions can be relevant when the jury assesses whether or not Nick even had any sort of jerking of the eyes that would indicate anything. Is this true? A. As far as HGN, I don’t know about the weather having an affect. I know it affects the physical tests, the walk and turn and the one-leg stand. I don’t know if it can have an affect on the — &emsp; Q. We’re gonna get to that. And I can bring up the standards and on a break we can read ’em and you can come back and see if you still have that opinion about HGN. Okay? We’ll just go forward. All right? A. Uh-huh. Q. But you certainly know that if you’re facing somebody into the freeway and they got light coming by that that can affect nystagmus, correct? A. Correct. Q. And so you know there’s a section in the standards that talk about the different things that can affect someone’s eyes? A. Yes. Q. That have nothing to do with alcohol? A. Correct. Q. You say in your report that Nick was told two times to hold his head still while you were doing the horizontal gaze nystagmus? A. Yes. Q. And yet on the video — and maybe I — maybe I didn’t watch the video correctly — I only see one time. Is there a time that we would not be able to hear or see? A. If I mentioned it twice, I wrote it down twice. Q. Okay. So when you say — On the videotape you &emsp; can see yourself asking him two times to hold his head still? A. To my recollection, I heard him — I heard myself ask him to hold his — Q. Okay. A. — head still twice. Q. And you’re testifying that he swayed back and forth, side to side — or at least you put that in your police report. A. Correct. Q. — during the horizontal gaze nystagmus? A. Yes, ma’am. Q. So when we watch that again, we’ll look for that too. There’s a five minute gap between the horizontal gaze nystagmus and the — the — the – the future field sobriety testing. Is that correct? A. If you say so, ma’am. Q. Well, there’s a gap. There’s a time period where you do horizontal gaze nystagmus, then you leave Nick at the car. Is that correct? A. Yes, ma’am. Q. In fact, you put your suspect, your defendant, your person that you think is something and you immediately turn your back on him and begin to walk &emsp; towards your squad car? A. In looking back, yes, ma’am, I did. Q. All right. What about that should cause any police officer concern if they watch that? A. None. Because I was looking back behind my shoulder. Q. Okay. So what we can’t see, or maybe I — maybe I just didn’t look at it correctly, is you’re looking actually behind your shoulder at him the whole time you’re walking? A. Yes, ma’am. I don’t need to completely turn around and look behind my back. Yes, ma’am. Q. At the point when you have turned around, got your back to the suspect and walking, have you secured that weapon that you know about that’s in the car? A. No. That’s why I’m looking back. Q. So if he jumped up and ran to get the weapon, he could go do that, couldn’t he? A. Yes. Q. And is that something that procedure tells you is okay to do? If you’ve got a suspect, put him in the back of the car. If there’s a weapon, turn your back, look over your right shoulder, left, as you walk away? Don’t secure the weapon first? A. Considering that I’m focusing on the SFSTs, my &emsp; worry’s not with the weapon. Q. Okay. Then you leave and you go into your squad car. And we can hear you talking. And you say something like 339, or something. What is happening there in the car? A. I requested an assist. I requested a supervisor. The dispatcher notified me that 339, which is my corporal, will be en route. Q. And so what you told the jurors is it’s a three-part test and you do not make a determination until you’ve seen all of the tests, correct? A. Correct. Q. But after this horizontal gaze nystagmus test, you left Nick at the back of the patrol car for five minutes and you called out backup and a supervisor? A. One in the same. Yes, ma’am. Q. Okay. And so at that point, when you left him, you knew you were going to make an arrest? A. At that point I knew I had an officer. And I had the first opportunity to get on the radio. And anytime we pull over someone like that, it’s best to have a supervisor on the scene. Q. So did you wait for the supervisor to arrive before you did the walk and turn? A. I was going to, but it took him forever, so I &emsp; went ahead and proceeded without him. Q. Okay. So the whole I’m gonna call a supervisor because I already haven’t made a decision to arrest him, it’s really just to have another person here, that just didn’t turn out to be the reality? A. Right. I couldn’t wait anymore. Q. All right. So on the walk and turn you talk about, during the instruction, that Nick lost his balance and you counted that against him; is that correct? A. Yes. Q. Did he ever break his feet apart whenever he — on the walk and turn? A. On the walk and turn, no, ma’am. Q. And did he have on slip-on shoes? A. Yes, I believe he did. Q. And so slip-on shoes are pretty difficult to hit toe to heal and walk in; is that correct? A. I don’t wear slip-on heals, so I don’t know. Q. Well, neither here nor there, he took his shoes off — A. He did. Q. — is that correct? And once he takes his shoes off and does the walk and turn, he nails it, does he not? &emsp; A. No. Q. All right. What does he do wrong? A. Missed a heal to toe step. Q. Is that anything you can see on the video? A. No. That’s why I flashed my flashlight. To indicate to myself when I go back and review the video that the clue is present. Q. And so when he missed toe to heal, how much are we talking about he missed? A. In order to count the clue it has to be greater than half an inch. Q. And so when you put in your police report it was a half inch to an inch, the half inch is actually okay, isn’t it? A. Right. The inch is not. Q. All right. So in your police report you marked it against him for being a half inch to an inch, but the reality is it shouldn’t have gone against him unless it was more than a half inch? A. Correct. And again, we’re just guesstimating because I don’t have a ruler and I’m not measuring his steps. Q. So the jurors can guesstimate as well as you can, correct? A. Absolutely. &emsp; Q. The jurors can watch that video and do an assessment about how well he did the walk and turn as good as you can, can’t they? A. They can. And they will. Q. And they can decide whether or not he’s swaying and whether or not when you took off his shoes all of a sudden he was a pretty good walk and turner, correct? A. Absolutely. Q. And you agree with me that the national standards do talk about inclemental weather being a factor in people’s bodies being able to do the walk and turn and the one-leg stand? A. Right. Q. And that’s certainly a situation that we had on January the 3rd in this great state of Texas in 2013? A. It was definitely cold. Yes, ma’am. Q. And we often do on that time period, correct? A. Yes, ma’am. Q. On the one-leg stand, that is the one which he seems to have some problems with, correct? Visually? A. Yes, ma’am. Q. Is there any reason that you made him – or asked. You didn’t make him. You said, “Put your shoes back on.” Is there any reason you had him put his shoes back on when you knew that he had just taken off his &emsp; shoes and was able to do the test better with the shoes off? A. Well, considering how cold it was, I figured he would prefer to have his shoes back on to warm his feet. Q. And so was there any opportunity that you gave him to take his shoes off again to do the one-leg stand? A. No. Q. Is there a difference between standing and doing — putting your leg up whenever you’ve got on boots to support your ankle and whether or not you have on, basically, like, slip-on shoes? A. I guess you can say there is. I’ve never performed the test without my boots on. Well, actually that’s not true. When I wear my shorts uniform, I do wear low-heal shoes. They’re not high tops. They’re regular shoes. So I have no issues with it. Q. Okay. And so as far as whether or not the slip-on or not you don’t know because you’ve never had those kind of shoes? A. I don’t use those, ma’am. Q. Did you ask Nick if he had any sort of ailments? You said, “Are your legs okay,” but did you ask him the standard questions that you’re supposed to ask: Do you have any sort of physical ailments? A. Well, considering he’s an officer, I would &emsp; think he would know what I meant when I asked the question that I asked. If he had any issues, he should have brought ’em up. Q. Well, Nick was clearly not a person that was interrupting you and bringing things up, was he? A. No. Q. He was a person who was responding to your questions, correct? A. Yes, ma’am. Q. Nick was assuming the position of yes, sir, correct? A. Yes. Q. So when you’re assuming that position, you don’t bring things up. Correct? A. Unless it’s imperative to the investigation. You know, ’cause people tell me all the time, oh, I had a old football knee injury or I’ve had surgery. You know, whatever their ailment is, they’ll — they’ll — they’ll let me know. Q. And Nick did not tell you that he’s had back surgery? A. No, ma’am. Q. He didn’t show you a big scar across his back? A. He didn’t. Q. But that would have been a relevant thing for &emsp; you to know had he decided to break from yes, sir and told you that? A. Correct. Q. And certainly it would be a relevant thing for you to know on a night that was 31 degrees? A. Yes, ma’am. Q. And it may be something that you would assess in determining him when he wasn’t doing such a great job on the one-leg stand? A. That would be a factor, yes, ma’am. Q. And if he would have just spoke up about the back and if he’d have spoke up about I don’t wanna do it in these shoes, can I take ’em off again, that also — it may could have turned out different? A. It could. Q. Whenever you first pulled over Nick and you began to talk to him and you really very quickly identified that he was a police officer — And there is a difference between a police officer’s conduct and a civilian’s conduct in your eyes; is that correct? A. Yes, ma’am. Q. In fact, you say it very clearly on the tape. A. Correct. Q. That you personally hold police officers to a higher standard than you would if you’d pulled me over, &emsp; a civilian? A. I think everyone holds us to a higher standard. Q. But you personally do? A. Absolutely. Q. And so you tell him that you’re holding him to a higher standard than you would any another motorist had they been in that same situation. Is that correct? A. Correct. Q. In fact, when this is over, you go back to the station and you’re telling ’em, “Did you hear. Did you hear. Fort Worth cop, DWI.” A. Yes. Q. Were you proud of the fact? A. No, not at all. Q. Were you proud of the fact that you caught some big fish out there, Fort Worth PD? It wasn’t Keller, was it? A. No. Q. It was Fort Worth PD. That’s kind of — It’s a big jurisdiction within your jurisdiction, correct? A. It is. Q. Well, if you weren’t proud, how come you were telling everybody at the station — we could hear you talking — that I’ve got a cop, he’s Fort Worth PD? A. Yes. It’s one of those unbelievable things &emsp; that you don’t wanna do but you don’t have a choice. It puts my job at risk if I don’t do what needs to be done. Q. Whenever you wrote down on your police report — You wrote down that this happened between 1200 and 1800 114. Is that correct? A. Yes. Q. Have you ever googled that or looked up Map Quest on that and determined if that address is even correct? A. That’s the measurements we use. That’s the standard we use. Q. How do you — What measurements? What standard? A. We have a map that we were given from Westlake that’s got the cross section and all that. And it shows all the block numbers from the line from Southlake all the way to the line of Fort Worth on 170 and thereabouts. Q. All right. So if the address is incorrect for Google, Map Quest, everybody else, it’s correct on the map they gave you? A. I’ve gone off the one Westlake gave us. That’s the one we use. MS. KEENE: Judge, may I have just a minute? &emsp; THE COURT: Yes. (Short pause) Q. (By Ms. Keene) In your police report you wrote down that when Nick was at the police station, when you’re doing your DIC, the warning, the warning says, yes, I’ll do the breath test, you wrote down that his level of intoxication was about the same as it was at the scene. A. Correct. Q. And so what the jurors are seeing of him in the police station is about the same thing that you were seeing out on the scene? A. Yes. Q. You pulled him over at what time did you say? Let’s get it exact. A. Well, I saw him at 0056. I can’t exactly say when I actually — I’d have to look at the video to see when I actually pulled him over, when we actually stopped. Q. At what time was he arrested? A. He was arrested at 0122 hours. Q. 122. And then do you have any idea what time the breath test was given? A. Not without looking at the results. Q. All right. Well, we’ll talk to somebody else &emsp; about that. MS. KEENE: All right. Judge, I was going to go through the videotape, if you wanna do that now, but that will probably be 30 minutes or more. THE COURT: Why don’t we take a little break. About a five-minute break. (Open Court, Defendant Present, 12:11 p.m.) THE COURT: I’m ready. Get the officer in here. (JURY PRESENT) THE COURT: All right. You may be seated. BY MS. KEENE: Q. Yes, officer. We have got the video cued up. And you’ve got one of these. Okay? And that yellow button is a — makes a red dot. A. All right. Q. Okay? A. Yes, ma’am. Q. And so when it begins to roll, the prosecutor’s been very kind, because he’s right over there, he’ll stop it whenever we need it to be stopped. But I want you to show the jurors where Nick is in the car that you said you could see him straddling on the lanes and what &emsp; happens there in the beginning. Okay. So go ahead and start. (State’s Exhibit No. 2 published.) A. (The Witness) Right there. MS. KEENE: Okay. So if you’ll stop that video for a second. (State’s Exhibit No. 2 paused.) Q. (By Ms. Keene) So that’s the what — That’s the violation that you saw that alerted you? A. That’s what I saw that caught my eye. Yes, ma’am. Q. And you can see, now that you’ve watched the videotape, that he was — that he used his blinker to take the exit. Correct? A. Yes. But I’m referring to what happened prior to that. Q. Okay. So that he didn’t use his blinker whenever he changed lanes? A. Right. Q. Okay. You can proceed. (State’s Exhibit No. 2 published.) Q (By Ms. Keene) So can we see his car? A. Right there. Q. And we can see that he’s using his brakes? A. Yes, ma’am. &emsp; Q. And making a safe turn? A. Yes, ma’am. Q. Is that his car? A. Yes, ma’am. Q. And he’s using his — And he’s yielding right there, correct? A. Correct. Q. And so now it’s after this that you said that he drove off the — the — the — into the improved — Is that him still right here? A. Yes, ma’am. Q. All right. When is it that he drives off of — into the shoulder? Up to two feet you said in your report. A. As we’re merging onto 114, he comes back and then he does it again, then he comes back. And so I checked my video to make sure I’m covered on video, then I realized I hadn’t zoomed out on the camera. Q. So it’s all this time period when he’s doing all this horrible driving that we can’t see? A. That’s when he’s driving on the improved shoulder. Yes, ma’am. Q. All right. So now you’ve got it back on. A. He hits the line there, hits that line there for a few seconds. And as I noted, I slowed down at &emsp; which point he accelerated and I had to accelerate. Right there he accelerates, and I had to accelerate to catch up. And I go ahead and engage the lights. Q. And so it was all the things that we did not see when the — when the camera’s to the left that really is causing you to pull him over, or is it — A. Yes, ma’am. Q. — the things we’re seeing? A. The thing that you saw at the beginning caught my eye. And then, yes, ma’am, as we turn around and head eastbound, that’s when he drives on the improved shoulder. Q. Okay. And we’ll fast forward here in a minute, but right here is there some reason you could not have brought him to right in this area to do the horizontal gaze nystagmus so that we could have seen it better? A. No, ma’am. That’s the spot I chose. Q. Okay. Let me ask you this. Right down in here it says “Radar target/patrol law.” A. Yes, ma’am. Q. What does that mean? A. We don’t use the radar. Essentially, what that would show, if the supervisors allowed it to, is it shows the speed that we’re traveling at not the person that we’re following. And so they can make it &emsp; available. They can see it. I can’t. Anytime I play my video I can’t see it. I only know how fast I’m going and when I’m actually going that fast. And when I go back to read the video it does not show our speed on the screen. So that — we don’t — There’s no radar attached to the camera system. I’m assuming that’s a function of that camera system, but we don’t deploy that. Q. Okay. Oh, I meant to do the — how long that took. So actually we have to go back. I’m sorry. Go back to where you put your lights on to see if that was 25 seconds as you stated in your police report. And so right down here where that toggle is — MS. KEENE: Can you move that little toggle. Q. (By Ms. Keene) — that says 5710. This is the timing on it, correct? A. Yes, ma’am. Q. All right. So it’s 5853. You have a blinker on by 57. So that’s not beginning to pull over. 59. So you count it all the way ’til he does a complete stop? A. Correct. &emsp; Q. And so the fact that he hits his blinker and begins to safely pull over, that doesn’t count for him? A. No. It’s when he actually stops. So I counted at 5852 and then at 5919 is when he came to a complete stop. Q. Okay. So 65 miles an hour, if a police officer hits their lights on, we’re supposed to just slam on our brakes and immediately go to the right? Is that the safer way to pull over? A. No. But there’s a happy medium. Q. So you think that’s too long? A. It seemed a bit long to me, yes, ma’am. Q. Okay. And then to you that’s something that you tacked against him in this whole totality thing? A. That’s something I add to the report. Yes, ma’am. Q. Okay. If you could go to 10541 and if we could have — 107 actually. 107. A. (Witness complies) Q. Do we have sound? (State’s Exhibit No. 2 published) Q. (By Ms. Keene) Where is he swaying here? Where is he swaying? A. It’s slight, but it’s there. Q. When is the second time you asked him to hold &emsp; his head still? A. I think when I spoke just now. Q. So you’re thinking at 108? A. (Nods head up and down) MS. KEENE: Can we go back to about 108. Q. (By Ms. Keene) You think that’s you saying “Keep your head still?” A. (No response) Q. How about you saying, “Yeah. It’s a little cold?” A. I can’t tell. It’s garbled. Q. Okay. But in your police record – You said you reviewed this and were very clear when you saw it. Because you were clear in this report you told him two times to keep his head still during the horizontal gaze nystagmus. A. Right. Q. And so you would have watched this and felt like that was gonna help all of us see that. Is that correct? A. Yes. Q. And it does not? A. Correct. Q. So is that another mistake in your police report? &emsp; A. Yes, ma’am. Q. Okay. And I appreciate you just admitting that. It just is what it is, correct? A. Correct. Q. (By Ms. Keene) I’m done. Thank you. MS. KEENE: Judge, I’ll pass the witness. THE COURT: All right. Mr. Marcum. REDIRECT EXAMINATION BY MR. MARCUM: Q. Officer, as a police officer, do you personally often demonstrate field sobriety tests in the freezing cold? A. Yes. Q. As an officer are you used to or accustomed to demonstrating the field sobriety tests in the freezing cold? A. I prefer to be working in San Diego, but I gotta do what I gotta do. Q. Something that comes with the job, correct? A. Yes. Q. What were you wearing that night? A. My long sleeved shirt and my pants. And I think I had gloves on. Q. The fact that maybe you did, maybe you didn’t tell him twice to stop moving his head, does that change your opinion as to whether he was intoxicated? A. No. Q. Was Nicolas Ramirez the most intoxicated person you’ve ever encountered while you were on patrol? A. No, sir. Q. But still you arrested him based on what you observed on the scene that night? A. Correct. Q. And did you have the benefit of a breath test at the time you arrested him on the scene that night? A. No. Q. As you sit here today, is there any doubt in your mind that Nicolas Ramirez was intoxicated by alcohol that night? A. Absolutely not. Q. Thank you. MR. MARCUM: Pass the witness, Judge. MS. KEENE: No further questions, Judge. THE COURT: All right. Thank you, officer. You may step down. MR. MARCUM: May this witness be excused, Your Honor? THE COURT: Yes. You’re excused. MR. MARCUM: State calls Joe Salvato, &emsp; Your Honor. THE COURT: Joe Salvato. (Witness takes witness stand) THE COURT: Raise your right hand. (Witness sworn) THE COURT: Be seated. JOSEPH SALVATO, the witness having been duly sworn, testifies as follows: DIRECT EXAMINATION BY MR. REID: Q. Good afternoon, Officer Salvato. Could you do me a favor and say your first and last name and spell it for the court reporter. A. It’s Joseph Salvato. S-A-L-V-A-T-O. Q. Officer, how are you currently employed? A. I’m the K9 officer with the Keller Police Department. Q. How long have you been with Keller PD? A. It’ll be nine years in October. Q. You’re time with Keller, what are your duties as an officer? A. Patrol the streets, highway interdiction, call outs with the K9. Q. Are you called upon to operate an intoxilyzer instrument sometimes? &emsp; A. Yes, I am, if there’s nobody available. Q. Yes, sir. What is an intoxilyzer? A. It’s an instrument that’s used to take breath samples to find out if somebody’s over the legal limit. Q. Let me back up really quickly. Are you a certified peace officer in Texas? A. Yes, I am. Q. And did you become that by attending a police academy? A. Yes, I did. Q. Okay. Have you — So you sometimes do operate an intoxilyzer. Have you had special training regarding that instrument? A. Yes, sir. Q. Okay. Can you tell the jury a little bit about that training. A. Tarrant County College provides a 40-hour class to become certified in operating the instrument. So during the first week of December of 2006 I attended the 40 hours. Q. And upon completion of that course, are you certified to operate an intoxilyzer instrument? A. Yes, you are. &emsp; Q. And are you currently certified to operate an intoxilyzer? A. Yes, I am. Q. Were you working for Keller PD on January 2nd of 2013? A. Yes, I was. Q. Were you also certified at that time to operate an intoxilyzer instrument? A. Yes, I was. Q. Have you read the arresting officer’s report regarding this case here today? A. No, sir. Q. You have not. Is it common that as part of that course that if you’ve operated an intoxilyzer, you would complete some paperwork to be submitted with this report? A. I complete a observation sheet that tells what time I started my observation, what time I finished the observation, if the reference sample — when it was last checked and I sign it. Q. Okay. If you remember, what type of shift were you working on January 2nd, 2013? A. Eleven p.m. to seven a.m. Q. Okay. And do you recall administering an &emsp; intoxilyzer breath test to a defendant around 2:15 a.m. on January 2nd, 2013? A. Yes, I do. Q. Okay. Is the person you administered that test to in the courtroom today? A. Yes, sir. Q. Okay. Could you please point to that individual and identify him by an article of clothing. A. It’d be the gentleman in the dark suit to your left. MR. REID: Your Honor, may the record reflect the witness has identified the defendant Nicolas Ramirez? THE COURT: Record will so reflect. MR. REID: Your Honor, may I approach the witness? THE COURT: You may. Q. (By Mr. Reid) Officer Salvato, I’m handing you what’s been previously marked as State’s Exhibit 4. Do you recognize this? A. That’s a copy of the intoxilyzer record. Q. Yes, sir. Okay. I wanna talk with you a little about that without going into the results of that test. A. Okay. &emsp; Q. Is that your signature on the bottom of the test right there? A. Yes, it is. Q. Okay. And does this look like a fair and accurate copy of the intoxilyzer test that you printed out that day? A. It’s a copy of a copy, yes. Q. Yes, sir. What date was this test administered on? A. It was administered on 01-02 of 2013. Q. Okay. And whose — Whose name is on that test result? A. The officer or the subject? Q. What is listed — What is the information at the top of that test result? A. Oh. It’s Ramirez, Nicolas A. Q. Okay. What other information is at the top of that? A. It would be Mr. Ramirez’ date of birth. And then after that, it’s the operator, which would be my name, my certificate number, the operating agency, which is Keller Police Department, the arresting officer, which would be Officer Rodriguez also from the Keller Police Department, and then the predicted reference sample. &emsp; Q. Okay. Could you tell the jury a little bit about what your duties are when an arrestee is brought into the jail. A. When an individual is brought in for investigation of DWI, he’s brought in. If I’m gonna do the intoxilyzer, I’ll take the handcuffs off, I’ll inspect his mouth to make sure there’s nothing in it. In the jail we were currently in there’s a bench in front of the book-in area. He was placed at the bench. Seated on the bench if I’m not mistaken. While he’s being booked in I do the observation. It’s a 15-minute observation. I normally use 18 to 20 minutes. During that period of time while I’m observing him, he’s being booked in by the detention officer. After the 15 minutes is up — like I said, I give 18 to 20 — I take him into the room located across from where the book-in desk was and I provide — I had him provide the breath samples I need to complete the record. Q. Okay. Officer Salvato, let’s just back up to the beginning. A. Okay. Q. Why are you checking the defendant’s mouth? A. To make sure he has nothing in his mouth. Q. Okay. And then why do you continue to observe &emsp; him for more than 15 minutes? A. Make sure he doesn’t vomit into his mouth, stick something into his mouth that could hamper the test. Q. If that had occurred in those 15 minutes, what would you have done? A. Restart the observation period over again. Q. Okay. Do you recall that being an issue in this test? A. It was not an issue. Q. Okay. Do you make — when — do you do any checks with the instrument before a person provides their breath sample? A. I don’t understand. Q. Okay. Did you — After the observation time is complete, do you check the instrument to make sure it’s — A. I check — Q. — working properly? A. I understand. I check — The instrument has a solution, like an alcohol water mix, that’s attached to the instrument. That solution has to be at 34 degrees plus or minus 0.2. Q. Do you understand the science behind that solution or why it’s that way? &emsp; A. No, I don’t. Q. Okay. But what’s your — your job before you administer the breath test? A. To ensure it’s reading 34 degrees plus or minus. Q. Do you also verify that that solution has been changed within the prior 30 days? A. Yes, we do. Q. Did you do that in this case? A. Yes. Q. Is there anything specifically you do with the mouth pieces of that instrument to ensure that contamination does not occur? A. The mouth pieces come to us sealed in plastic. And when I do a breath test — Like I said, they give two samples. After he provides the first sample, I take the mouth piece, throw it away. And then for the second sample I provide him a new mouth piece. So he was given two mouth pieces. Q. Okay. Could you tell the jury at this point, after you check these things, how you administer the test and what you instruct the defendant to do. A. When we — When the instrument starts and it goes through its warmup phase, it’ll tell you when it’s ready. The first thing it’ll do is it’ll give an air &emsp; blank, which it’ll purge room air into a sample chamber inside the instrument. After that it’ll come up and it’ll say “blow.” There’s a little diagram that flashes across that’ll say “blow.” That’s when I hand the tube with the mouth piece to the person blowing and have him blow as hard as he can. The harder he blows the more stars that come up. You want as many as stars as you can so you’re getting deep lung air. After that happens, there’ll be another air blank purge. After that happens, there’ll be a reference sample, which the instrument is analyzing the vapor from that solution that’s in that glass jar. After it analyzes that, there’ll be another air blank purge again bringing more air from the room into the sample chamber. Then he’ll provide a second breath sample. Again, it’ll tell you when to blow. He’ll blow into it. And after he blows a second time, there’ll be another air purge. And after that’s completed, if there’s nothing voiding out the test, it’ll print out the test record. Q. Okay. What might cause the machine not to print a test record? A. If he failed to blow hard enough, it’ll automatically void itself out. If there’s a interference. Some — If you get a diabetic that comes &emsp; in there and they blow, it’ll recognize the alcohol that their body’s giving off, which isn’t really alcohol. It’s from being diabetic. That’ll void out the test. If you have your radio on and the instrument picks up the frequency, it’ll void out the test. Q. Okay. In this instance, did it print out a test result? A. Yes, it did. Q. Is that what you have in front of you right there? A. Yes, a copy of the test record. Q. Yes, sir. What is the serial number of the instrument that you used to test the defendant’s breath? A. It’s 68 dash 013008. MR. REID: Your Honor, may I approach the witness? THE COURT: You may. Q. (By Mr. Reid) Officer Salvato, can I see that piece of paper. MR. REID: For record purposes I’m marking this as State’s Exhibit 4. Q. (By Mr. Reid) You said there was a date and time printed on this test. How is that entered? A. I manually type it in. &emsp; Q. Okay. A. I type in the date. I don’t put in the time. It’s automatically registered on the instrument. Q. Do you recall anything strange or out of the ordinary when performing this test on the defendant? A. No. No, sir. Q. Nothing unusual happened when you administered this test? A. Nothing. Q. And you did receive a printout of the results when you completed the test? A. Correct. I got three copies. Q. Do you have an opinion as to if this intoxilyzer, serial number 680-13008, was performing properly when you administered the test? A. It was. Q. Have you had occasion to administer an intoxilyzer test prior to administering this test? A. Yes, sir. Q. Would that be on few or many occasions? A. In that period that I was reassigned to the jail I’d say I did maybe 15. Q. Okay. But there was nothing out of the ordinary about this test? A. No, nothing. &emsp; Q. Okay. Who — What is a technical supervisor? A. The technical supervisor’s the one that goes over the results of that test record you’re looking at. He makes sure there is no errors that we would have put in — or I would have put in on the day of the test. He’s also the one that certifies us every year. Any problems with the instrument we contact him 24 hours a day. That would be Mark Fondren. Q. Yes, sir. And just for clarification, are you here to testify about the scientific process of this test? A. No, sir. Q. You’re just here to testify that you followed the standards and protocols you were trained in? A. That’s correct. Q. And do you believe that this test is an accurate record of the defendant’s blood alcohol concentration at the time of the test? A. Yes, sir, I do. Q. I just wanna go back and cover one thing. When you do check the temperature of that solution, what temperature should that be? A. 34 degrees. Q. Okay. Is there any range at which you would note that it was off? &emsp; A. You get 0.2 plus or minus. So it can be as low as 33.8 or as high as 34.2 degrees when you read it. Q. If it — If it was off that much, would you have performed the test on that date? A. No. Q. Was that the case in this test? A. No. It was accurate at 34 degrees. MR. REID: Your Honor, we’ll pass the witness. CROSS-EXAMINATION BY MS. KEENE: Q. How are you doing, sir? A. I’m doing well. Thank you. Q. It’s Officer Salvato? A. Yes, ma’am. Q. How long have you been an intox operator? A. Since December of 2006. Q. And you said you’ve done about 15 tests? A. During that time period I was reassigned to the jail. Q. So you were not doing — you were not doing the breath test at that time period? A. Only on my arrests I was. Q. Okay. Explain to the jurors what that means. A. I was a jailer prior to being an officer. &emsp; kept my certification because it’s easier for me, if I arrest somebody for DWI, to complete the whole process. Normally an officer that isn’t certified will bring the individual in, pass ’em off to the jailer, then the jailer has to book ’em in and observe ’em at the same time, which at that time we only had one jailer staffed. So as an officer, in keeping your certification, when you make an arrest, you bring ’em in, you take their handcuffs off, you check their mouth, you — I would start my observation period the minute I walked into the jail. So then I would take him down the hallway, do what an officer does during the interview process, the investigation for DWI, and never having to pass him off to a jailer. Q. And so in this case it was passed off. And you said you’d done about 15 during that time period? A. During this case I was off the street, reassigned to the jail. So this duration of time that I was reassigned from patrol to the jail and strictly working in that jail I had done 15 over the course of being reassigned. Q. Over about what period? A. I wanna say it was maybe two months. Q. And you said that — You said you did the test ’cause no one else was available. So you were not the &emsp; designated person to administer the test during that time period? A. Yes. There was a female jailer on duty. Q. Who was the designated person to do the — A. Well, as long as you’re an intoxilyzer operator, either one can do it. Q. And the female jailer was not available? A. She was booking people. Q. All right. You talked about needing to observe the person. A. Uh-huh. Q. Why do you need to observe a person? A. To make sure they don’t add anything, put anything in their mouth, regurgitate. Basically, to make sure they’re not putting anything in their mouth that could damage the test. Q. Well, what would happen if someone were to belch, even ever so slightly, and then breathe into the machine? A. If that were to happen, then we’d have to start the observation period again. Q. Why? A. Because they’re bringing alcohol up from their stomach. Q. So there’s a number of different things that &emsp; can create a false/positive that you’re trying to avoid by observing? A. Correct. Q. And so in other words, you’ve got 15 minutes that you’re supposed to observe this person because some things can happen with this person that can make that machine say that this person’s intoxicated when they’re not? A. I don’t know about that. Q. Well, okay. If a person belched — A. Okay. Q. — and then blew into the machine? A. He wouldn’t be allowed to blow into the machine if he belched. Q. All right. What if you didn’t see the person belch and then they blew into the machine? A. If I’m observing ’em, why wouldn’t I see it? Q. Well, I’m saying — but you’re observing him so that you’re trying to make sure that they’re not belching — A. Correct. Q. — and blowing into the machine. A. Correct. Q. So why do you not want that to happen? That’s all I’m trying to say. It’s not a trick question. A. Oh, I understand that. He’ll be bringing alcohol up and it’ll be residual alcohol in the mouth. Q. And so, then, they would blow into the machine and it would create a number that’s not accurate? A. It could cause the number to be higher. Correct. Q. Okay. So if a person was — was whatever — let’s say .06, below the limit, and they regurgitate or the belch and then they blow into the machine, it could do skyrocketing numbers on them because they just pulled the alcohol in their mouth and blew into the machine. A. It could possibly happen, yes, ma’am. Q. And so that’s why for you the 15-minute observation is important? A. Correct. Q. And how can you tell whether or not someone belches or has any sort of indigestion? How do you do that? How do you observe that? A. You watch them. Q. Okay. Tell us. How do you watch — How does a person get booked in? How does that process? Because you’ve been at both. A. The person would be brought in, handcuffs would be taken off. The individual would be searched, make sure he doesn’t have anything in his pockets. Socks. In the case of — either case, whether it’s DWI or not, you always check the mouth and make sure they don’t have anything in their mouth. If it is a DWI case, they immediately go straight to the book-in bench, which is — in this jail that we were using at the time the book-in bench from where the book-in officer is, is roughly three feet away. Q. And so are they — Are they getting fingerprinted and photographed? A. Photographed. Q. And not fingerprinted? A. After the DW — After the instrument – after the intoxilyzer portion of it’s done, then they’ll be fingerprinted. Q. Okay. But during this observation time period they’re being photographed? A. Photographed and answering questions. Yes, ma’am. Q. Okay. And that’s not questions that you’re asking? A. No, ma’am. Q. And that’s not pictures that you’re taking? A. No, ma’am. Q. But that’s all happening at the bench? &emsp; A. Yes, ma’am. Q. And so how close are you to Nick or any other person during this observation? A. Right on the other side of the bench. Q. About how far are you? A. Three feet. Q. Okay. And is he facing you the whole time or is he — A. He’s — He’s facing me, yes, ma’am. Well, he’s facing the detention officer which is to my immediate left. Q. Okay. So he’s — he’s to your — You got an angle on him? He facing another officer and you have a slight angle on him? A. Maybe. Q. You said you did not understand the science of how the Intoxilyzer 5000 works. Is that correct? A. That is correct. Q. And that is the name of the machine that Keller has, isn’t it? A. That’s correct. Q. It’s the 68 version? A. Yes. Q. And how long has that machine been used by Keller? &emsp; A. Maybe — I wanna say since 2008 maybe. Q. Okay. How long have they used the 68? Do you know? A. No, ma’am, I don’t. Q. Do you know whether or not there are newer machines available? A. There’s currently a new model coming out. Q. Currently a model in between the 68 and the one coming out, correct? A. No. This would be the newer model. This would be all touch screen. Q. The new — the newest one? A. The newest one, yes, ma’am. Q. And does Keller have that — purchasing that? A. We have it. We don’t have it installed yet. Q. Okay. But even though you do not understand the science, you feel comfortable telling the jurors that this machine was working correctly? A. Based on what I was taught, yes. Q. All right. So you don’t know — Other than what — to check the solution, that’s really all you know to do? A. Correct. Q. And so if the solution says it’s 34 degrees, then you’re fine? &emsp; A. Correct. Q. Anything else about the machine – The machine’s gonna have to tell you it’s not working because you don’t know how it works? A. That’s correct. Q. You also talked about the more stars you get it’s better. A. The individual’s giving more air, blowing harder. Q. Why is that important? A. You’re getting more air from the lungs. Deep lung air. Q. Why does that matter? A. That’s where the alcohol is coming from. Q. All right. So a bigger blow would actually give more of a reading versus a lower blow? A. Possibly. Q. And so it depends on your level of blowing as to what those numbers may ultimately be? A. Correct. But you want the first sample and the second sample to be pretty much in line with each other. If they’re not, the test will void out. Q. Why is the temperature relevant? Why is the temperature relevant to the machine? A. The 34 degrees? &emsp; Q. Yeah. A. That’s what — I can’t remember. Q. That’s all right. How come there’s no video of the breathing, of the observation and the breathing at Keller? A. There is camera in the room. Q. How come y’all didn’t hit it for — A. It’s — Q. — Nick Ramirez? A. It’s always running. Q. How come we don’t have it for Nick Ramirez? A. I do not know that. Q. So your understanding is there was a video of him walking in, of the observation and of him breathing in the machine? A. The jail is completely monitored. Q. And as far as you know that wasn’t turned off for Nick? A. It’s on a constant loop. It constantly runs. Q. So who — who — whose responsibility would that be to get that videotape to the district attorney’s office or the defense attorneys? Is there a detective, or is that the arresting officers? A. That would probably be the records department &emsp; maybe. Q. Who — who — Whose responsibility is it to gather the information? Who files the charges in Keller? A. CID. Our detective division. Q. And so who is that in this case? A. The person — the actual detective who would have filed the case? Q. Yeah. I mean, how does — How does Keller file cases? A. The detectives. Q. Every jurisdiction’s different. A. The detectives do it. Q. So a police officer makes an arrest and he gives it to a detective? A. He makes an arrest, he places it in the records box, the CID, the detectives, lieutenant, will come in there, pick up the cases and then hand ’em out. Q. So it’d be whoever that detective is? A. That’s correct. Q. And you don’t know who that is on this case? A. No, ma’am, I don’t. Q. How come you change the mouth pieces in between the two breath tests? A. I just change ’em. You don’t have to anymore. &emsp; I just do it. Q. Why? A. Just so there’s — it’s a clean mouth piece. Q. Who was the last person, if you know, who gave a sample on the machine SN680-13008 prior to Nick taking it, doing it? A. I do not know that. Q. When was the — Would you know about when it was serviced or would that be someone else? A. That would be the technical supervisor. MS. KEENE: I don’t have any questions, Judge. THE COURT: Anything further? MR. REID: Just a brief redirect, Your Honor. REDIRECT EXAMINATION BY MR. REID: Q. Officer Salvato, what are the air blanks? What is your understanding of what those do for the machine? A. The air blank purges room air into the sample chamber inside the instrument. Q. Okay. And is that the first thing the intoxilyzer does when you turn it on? A. Yes, that’s correct. Q. Okay. So if the air blank read 00 at the &emsp; beginning of your testing, that would mean there was nothing in the instrument? A. That’s my understanding, yes. Q. And then also if you did bring in a defendant and they blew into the machine, if they didn’t blow hard enough, would it print a test result out? A. It’ll print out a test result, but it’ll say “deficient sample.” Q. Okay. But if the person did blow hard enough, it would just print out the results of that test? A. After two samples, correct. MR. REID: Pass the witness, Your Honor. RECROSS-EXAMINATION BY MS. KEENE: Q. You talked about the number of stars being important. How many stars did Nick blow? Whenever he blew into it, how many stars did he do? A. I don’t recall. Q. Okay. Is that something that you made a note on at all on your page 6 report? A. No, ma’am. Q. So that’s important to know how many stars it is, but that’s nothing that we know what Nick did or didn’t do, correct? A. That’s correct. &emsp; MS. KEENE: I’ll pass the witness, Judge. MR. REID: Nothing further for this witness. THE COURT: All right. Thank you, officer. You may step down. And you’re excused. All right. Ladies and gentlemen, it’s just about 1:00. Let’s come back at — I’m gonna give you a little bit more time. We’ll get started again at 2:30. Officer will take you in there. If you wanna leave something in the room or whatever… Be back by about 2:15, 2:30. Okay? Get here by about 2:20. Okay? All right. (Courtroom lunch from 12:56 p.m. 2:26 p.m.) (Open Court, Defendant Present) THE BAILIFF: All present. THE COURT: All right. Let’s bring ’em in. (JURY PRESENT) THE COURT: Y’all can go ahead and be seated. We’re waiting on y’all. All right. Mr. Marcum. MR. REID: Your Honor — THE COURT: Sorry. MR. REID: — the State would call Mark &emsp; Fondren to the stand. (Witness sworn) THE COURT: Mr. Reid. MARK FONDREN, the witness having been duly sworn, testifies as follows: DIRECT EXAMINATION BY MR. REID: Q. Mr. Fondren, could you please state and spell your first and last name for the jury. A. Good afternoon. My name is Mark Fondren. F-O-N-D-R-E-N. Q. Mr. Fondren, how are you currently employed? A. Employed as the senior forensic chemist at the Tarrant County Medical Examiner’s Office. Q. What are some of your duties and responsibilities? A. I have a number of different duties and responsibilities. Primarily my role is to oversee the breath alcohol program for the county and to manage the day-to-day operations of the calibration laboratory. In that capacity I do oversee and manage the breath alcohol program, calibrating instruments, repairing them, teaching and then explaining alcohol-related issues in court cases such as this. Q. Are you also a technical supervisor? &emsp; A. I am. Q. Okay. Could you tell the jury a little bit about your educational background. A. I hold a Bachelor of Science from Baylor University, a Master of Science also from Baylor. I completed my post-graduate work at Ohio State University. I am board certified by the American Board of Forensic Toxicology. Q. Have you had any education and training that relates to an intoxilyzer instrument? A. Numerous. Q. Okay. Can you tell the jury about your training and experience with the intoxilyzer Model 5000. A. I’m certified by the manufacturer to both repair it, calibrate it. Those activities I now teach younger forensic scientists who are entering into the field. Q. Are you presently certified by Texas Department of Public Safety as a technical supervisor? A. I am. Q. Okay. Just kind of in laymen terms, what as a technical supervisor do you do with and for these instruments? A. Like I just said, I calibrate, I repair, and then explain alcohol-related issues in court cases such &emsp; as this. Q. Okay. And what do you do to maintain your accreditation? A. Which one? I hold a number of different accreditations. Q. Yes, sir. In regards to the Intoxilyzer 5000 instrument. A. The laboratory — my laboratory is ASCLAD laboratory accredited. I’m accredited by the Texas Department of Public Safety. I’m accredited as a technical supervisor and I’m board certified. So, again, all those revolve around the same thing. So which are you referring to? Q. Yes, sir. Specifically the instrument. But I’ll move on. Were you certified as a technical supervisor on January 2nd of 2013? A. I was. Q. Can you tell the jury a little bit about the underlying scientific theory of an Intoxilyzer 5000 instrument. A. It applies the technique called infrared spectroscopy. First let me define what is infrared. Infrared is a type of light and more appropriately a type of energy that’s invisible to our eyes, but yet we &emsp; come into contact with it on a daily basis in a variety of ways. One of the more common examples would be a electric stove. You turn on the eye of the stove and what you feel is heat. Heat is, in fact, infrared energy. In the world of chemistry infrared is interesting because we can take a sample, whether that be a solid sample, liquid sample, or, in breath testing, a vapor sample. By passing infrared energy through our sample, we’ll get a unique chemical fingerprint. We can examine that fingerprint and determine a number of things. First what chemical compounds are present in that particular sample; secondly, what concentration is present. Q. The theory you just described, is that recognized as valid by the scientific community? A. It is. Q. Okay. Let’s go to the facts of this case. Are you familiar with an intoxilyzer operator by the name of Joseph Salvato? A. I am. Q. Okay. And do you know if Officer Salvato was certified to operate the intoxilyzer machine in this case on January 2nd, 2013? A. He was. &emsp; Q. Are you familiar with the specific instrument we’re talking about in this case? It’s an Intoxilyzer 5000 with a serial number 680-13008. A. I am. Q. Okay. Where physically is that instrument located? A. It’s normally located at the Keller Police Department. Q. Is the intoxilyzer instrument with a serial number of 680-13008, is that certified by the scientific director of the Texas Department of Transportation — or Public Safety? Excuse me. A. It is. Q. Was that particular instrument certified by the scientific director on January 2nd, 2013? A. It was. Q. And as part of your duties as technica supervisor, are you responsible for the maintenance and monitoring of that particular instrument? A. I am. Q. Okay. Could you tell the jury a little bit about how you maintain that instrument. A. There are two checks that I would utilize to determine if an instrument is operating correctly or not. One of which is called a modem check. About three &emsp; times a week, when I’m there in the office, I will call each of the instruments that I supervise over a modem line. By running a series of diagnostics and evaluating the results of those, I reach a conclusion about that instrument’s performance. Comparing those results to previous days allows me to create a literal history on that instrument. The second type of check is what’s called an on-site inspection. At least once a month either myself or one of the other individuals that work with me will go out and visit each of the instruments. We’ll look at the overall condition of the instrument. We’ll look at some of the specifics. That is, the infrared detector. We’ll concluded by taking a number of breath tests ourselves. The results that are obtained, notes that are made are placed into a file on the maintenance and inspection history of that instrument. Q. Mr. Fondren, the test date we’re talking about in this case was on January 2nd of 2013. In your records do you know the date previous to January 2nd 2013 when you checked that instrument? A. Looking at some notes, I did a modem check on the 2nd of January. Prior to that my previous modem check would be on the 31st of December, and my previous on-site inspection would have been the 18th of December. &emsp; Q. And on both of the dates prior to January 2nd, 2013, what was the operational condition of that intoxilyzer instrument? A. The instrument was operating correctly. Q. Okay. After January 2nd, 2013, did you go back to perform a checkup or maintenance on that particular machine? A. The next time the instrument was checked would be on the 4th of January, being a modem check. And I was again on location on the 21st of January. Q. Did that particular instrument require any repairs or modifications between those dates? A. No. Q. Okay. Do you have an opinion, based on your experience and training, as to the operational condition of the intoxilyzer instrument number 5000, specifically serial number 680-13008, on January 2nd, 2013? A. I do. Q. And what is that opinion? A. The instrument was operating correctly. MR. REID: Your Honor, may I approach the witness? THE COURT: You may. Q (By Mr. Reid) Mr. Fondren, I’m handing you what’s been previously marked State’s Exhibit 4. Do you &emsp; recognize that piece of paper? A. I do. Q. Okay. What is on that piece of paper? A. What you have is a copy of a breath test record that bears the unique test record number 4F01068. Q. Who was the intox operator that performed that test? A. Mr. Salvato. Q. Who provided the specimen that resulted in that test? A. I couldn’t tell you who actually provided it. I can only read from the test record that the subject is a Mr. Ramirez. Q. Yes, sir. Let’s talk about how we got those results. Is the individual who provides the specimen monitored for a time period before they give a breath sample? A. They fulfill a waiting period, yes. Q. And how long is that waiting period? A. It is at least 15 minutes. Q. Why might someone who provides a sample need to be observed for the 15 minutes prior to providing the sample? &emsp; A. The reason is twofold. First, it is a specific requirement within the rules and regulations that govern breath testing that the operator have that individual in their presence for at least 15 minutes prior to conducting the test. Secondly, and the reason we have it as a requirement, we want the operator to take steps during that time period to insure that the subject doesn’t consume any other alcoholic beverages, or, for that matter, any beverage, place other foreign material into their mouth, hence, chewing gum, things like that, and to watch that the subject doesn’t burp, belch or regurgitate other contents back up to the mouth. Q. Does the test record you have indicate tha these procedures were followed? A. This test record, as with all test records makes no mention of the 15-minute waiting period, but by looking at the test, the test record, I can see that all the steps were completed and we did obtain results. Q. Okay. On that test is there something called a reference? A. There is. Q. Okay. Could you explain to the jury what that is. A. The reference is a quality control sample. &emsp; That is, it’s run with each and every breath test. We know what the same is made of. It contains alcohol. More specifically, it contains ethanol at a specific concentration. Every time the instrument analyzes it it will print the value that it thinks it is at that particular time on the record. Q. Mr. Fondren, who prepares that referencsample? A. I do. Q. Okay. And how is that solution prepared? A. Simply prepared by taking a known amount of alcohol, a known amount of water and mixing the two together for proper concentration. Once I have mixed up a batch, then I would test it making sure that I have mixed it up to what I intended. And then I will send it to a different laboratory. It may be a different group within the Tarrant County Medical Examiner’s Office or it may be a private accredited laboratory throughout the state. Once their results come back to me, I review it, making sure it matched my original results. If it does, then we’ll do a couple more quality control steps, that batch has been certified, and we use it. Q. When you visit these instruments on-site, do you test the solution? A. One of the things that I do. &emsp; Q. Yes, sir. Could you try to explain to the jury in laymen’s terms why the reference sample is used in testing a person’s alcohol on their breath? A. Any typing, analysis in forensics, or for that matter in chemistry in general or toxicology, you run a known with all of your unknown samples. In this case our unknown that we’re looking for is ethanal concentration. We want to run a known standard along with that. That way we know that the instrument is one, recognizing a known standard and we also [Unintelligible.] Q. Mr. Fondren, on the test you have in front o you, what was the reference sample tested at? A. The target value was .08 and the actual analysis was point .077. Q. Okay. Are you looking for a certain range of tolerance that that solution can be tested in? A. We’re looking actually at two things. One, we wanna see does it recognize that solution as containing ethanal and only ethanal. If is sees something other than ethanal present, then we get some other messages on the test records. We’re also looking to see and comparing that to the predicted value of .08. And, yes, there is &emsp; a range. We wanna have that range of the analysis somewhere between the target value of .08 plus or minus .01. So we can go 07 or 09. Q. Could we previously just talk about the process of getting someone to submit a sample to test. What are some of the things that the intox operator is gonna do with that individual prior to them giving a breath specimen? A. First thing the operator has to do is meet the requirements of having that individual in their presence for at least 15 minutes. During that time period, there typically is a video that’s being made, there could be some paperwork that’s being taken care of. If those are completed or for some reason not occurring, then there could be idle conversation between everyone who is present. Q. Other than that, what are some of the things that the Intoxilyzer 5000 will do automatically during the testing of someone’s breath? A. Once we’re actually initiating the test and we’re moving through it, the operator enters some biographical data. Then we’re gonna divide steps into three categories: Things that the operator does, biographical; things that the test subjects, we want them to provide the breath samples. Ultimately they &emsp; have to provide the breath samples. And, thirdly, things that the instrument will do. It will step through the process moving from one sample to the next and finally print out the report at the end. Q. Could you tell the jury some of the safeguard that that instrument will automatically perform if anything’s wrong with the test sample. A. Naturally with any testing protocol there are checks and balances. For example, when you take two breath samples from a given individual, they have to agree within a certain range. That is, they can’t differ by more than too much. Your QC, the reference sample, which I’ve already spoken of, has to be within a certain range. All these are checks and balances. MR. REID: Your Honor, may I approach the witness? THE COURT: You may. Q (By Mr. Reid) Mr. Fondren, could I have that piece of paper back. MR. REID: Your Honor, at this time I’ll tender to defense counsel what’s previously been marked State’s Exhibit 4 and move to admit. MS. KEENE: No objection, Judge. THE COURT: Admitted. Q (By Mr. Reid) Do you have a copy of this, &emsp; Mr. Fondren? A. Not with me. Q. Okay. Let me give it to you then. Mr. Fondren, could you read the results of the two breath tests that were administered to the 6 defendant. A. Well, just for clarity, it’s two breath samples comprise one breath test. The first sample indicated a value of188 grams of alcohol per 210 liters of breath and the second sample indicated a value of .194 grams of alcohol per 210 liters of breath. Q. Mr. Fondren, you talked about the machine having a tolerance for the difference in the two numbers. Do those two numbers fall within the accepted range of tolerance for that machine? A. The instrument has a requirement of .02. So as long as the two samples differ by less than 02, then we have met the requirement. Q. And, specifically, can you tell the jury what those numbers mean. What is alcohol concentration and what is that a measurement of? A. The unit that I had used. Grams of alcohol per 210 liters of breath. Q. Okay. And what is in Texas the legal limit of &emsp; alcohol in a person’s system per 210 liters of breath? A. The statutory level is .08. Q. And is the result you have in front of you above that limit? A. These results would be higher. Q. Okay. Mr. Fondren, in the course of your training, have you also learned about the affects of alcohol? A. I have. Q. Have you learned about the affects it may have on someone when operating a vehicle? A. I have. Q. Okay. Well, how — How does alcohol affect a person’s ability to operate a motor vehicle? A. In general terms, as the alcohol concentration in your body rises your ability to safely operate a vehicle declines. Q. Do you have an opinion as to if a person provided a breath specimen of .188 has the normal use of their mental or physical faculties? A. As it pertains to the operation of a vehicle, no, they would not. Q. And why do you hold that opinion? A. Based upon three relevant factors. First is the scientific literature on the subject, secondly, &emsp; would be my experience in dosing people with alcohol, and, thirdly, would be my experiences where I myself have been dosed. Q. Mr. Fondren, if I gave you a hypothetical based on someone consuming standard drinks, do you think you could calculate how many standard drinks it would take a person to get to the result of that breath test? A. Yeah. Q. Okay. How many — And could you clarify for the jury what a standard drink is. A. We define a standard drink in the world alcohol as a standard — standard beer being a 12-ounce American beer — Miller, Coors, Budweiser. Take your pick — a 5-ounce glass of table wine approximately 12 to 14 percent alcohol by volume, or a one and a half ounce distilled spirit. Vodka, bourbon. Take your pick. Q. So could you tell me how many standard drinks it would take a 145-pound male to reach a blood [sic] alcohol concentration of 0.188? A. Well, first of all we’re dealing with a breath alcohol not a blood alcohol. The two may be related — the two are related. They may be identical, they may not be. So if I’m dosing a 145-pound male and my &emsp; target is .18, then I’m going to give that individual –If I ask ’em to drink all the beverages in a one-hour period, I’m gonna give ’em about eight to nine beverages. MR. REID: Your Honor, I’ll pass the witness. CROSS-EXAMINATION BY MS. KEENE: Q. You’re saying eight to nine drinks in one hour would get you to .18, .19? A. For a 145-pound male. Approximately. Q. That’s a bunch. A. Well, I wouldn’t — If I’m dosing somebody — and I do dose regularly — then I would probably spread that out over a two-hour period. Q. And so then you would do more of it because you have a two hour time period? A. Well, you would have two hours, but instead of nine, we may go up to ten. You double the time but you don’t have to double the drinks. Q. Gotcha. And you talked about this being a breath test and not a blood test. A. Correct. Q. So this is testing from breath alcohol not &emsp; blood alcohol? A. It is. The two are two matrices that we use in toxicology. They are very much related but yet they are separate. It is apples and oranges. Q. Exactly. They are — They are very different. The Intoxilyzer 5000, let’s just talk a little bit about that. How long has the — this particular model, the 68, been used? A. Well, this is the 68EN. They’ve gone through a number of revisions. The 68’s probably been out 15 years, maybe 20, and the EN’s probably been out 10 or 15, something like that. It was right after the 68. It’s the what we call enhanced. Q. Was it actually in 2000? A. This particular one or just the model in general? Q. The model. A. I’d have to go back and pull the records for that particular model from the manufacturer. This particular one I could look up very easily. Q. Well, look up the one right here. This particular one. When was this particular one put into service? A. Well, I can’t look it up here. It would be at &emsp; the office. Q. Okay. But you don’t — How many different types of machines do you supervise? A. Right now we’re rolling out the new replacement, but we have the 68, which is the oldest, we have the EN, which is the second oldest. And both of those are fixing to be retired with the 9000. So I supervise all three. Q. And so the Intoxilyzer 5000 has been used in this county, as a general rule, for how long? How long you been here? A. I’ve been here 20 years. Q. And in those 20 years you’ve always used the Intoxilyzer 5000? A. Correct. Now, that goes back to previous versions before the 68. We had a 66 before that. So the 66 came out mid eighties to late — mid eighties to late eighties. ’86, ’88, something like that. I’d have to look that one up. Q. And so the new one is the 9000? A. It will be. Q. And that’s the Apple I-phone of the breathalyzer so to speak? A. Yeah. They — Q. In comparison to what we’ve been having. &emsp; A. Right. The — the internal is gonna be basically the same. The inner-face, instead of a keyboard, you’ll have more of the smart phone technology where you have a larger screen, you press it, you tap it, things like that. That’ll be the biggest change. Q. I’m gonna switch around on you a little bit You talked about needing to have the 15-minute observation period because of a number of things that can happen. Correct? A. Yeah. Q. And that is to insure the reliability of whatever the machine is testing? A. It is. It’s a standard safeguard in the world of breath testing, whether it be the 66, 68EN, 8000, 9000 or one of the other manufacturers. It is a foundation in the world of breath alcohol that an observation period or a deprivation period be observed. Q. So in other words, if you get someone’s blood, someone comes and gets a needle, puts it in your arm, takes your blood, a belch does not matter? A. Correct. Q. However, a belch may matter on a breath machine testing your alcohol level in that manner. A. Yes and no. Yes, it’s going to matter in the fact that you have violated your 15-minute waiting &emsp; period and you have to start that over again. If you don’t know that’s there, then we’re gonna rely on certain protocols and safeguards within the instrument to identify that. If that doesn’t fail — or if that doesn’t work, we’re gonna have two failures: Not having a 15-minute waiting period and you’ve got an instrument that doesn’t work. Then that’s possible you could get erroneous results. Q. Now, you talked about there being — an intoxilyzer operator having a video being made in the 15 minutes. A. There can be. Some do, yes. Q. Do you know whether or not Keller videotaped the breathing into the machine and the 15-minute waiting? A. I don’t know. I don’t work for Keller. You have to ask them. Q. You know that Fort Worth does? A. No, I didn’t. Q. Okay. So you just don’t know. You don’t know which ones do and which ones don’t. You know that — A. Correct. Q. — some of them do? A. It’s part of what’s called their general or standing orders, policies, procedures. That would &emsp; change based on the — whoever the manager is or supervisor is of that department. That would be outside of my area. So I don’t know. Q. All right. On the — on the machine — How many machines does Keller have? A. One. Q. And on the Keller machine, has it ever had to be sent back to the manufacturer to be fixed? A. No. I would do all the repairs myself Q. All right. So you actually are the repair person? A. I am. Q. So for the past 20 years — You’re hired by Tarrant County? A. I am. Q. And you get paid by Tarrant County? A. I do. Q. How many times have you testified? A. Criminal and civil? Q. Yes. A. I do a world of civil as well. Q. Yes. A. Several thousand. Q. And how many times have you testified about breath machines? &emsp; A. Several thousand. Q. All right. As far as in this one dealing with Keller, has it ever gone in to you needing to fix it? A. Sure. I can go through my notes here. And, in fact, about 45 days after this — we have a little modem inside. On the 18th of February it breaks and comes back to the laboratory for repair. Q. And is there time periods that you have to calibrate this machine or make sure that it’s working in accordance to the way it’s supposed to work? A. There are. Q. And how often do you calibrate it? A. Whenever it’s shown to be out of calibration one of the things you would do is the modem checks, the on-sites. All those are tracking calibration levels at .08. And we’ll see certain fluctuations there. We’ll also look at some of the electronics where we have a number of markers built in at .1, .2, .3, .4, .5 where we can look at the calibration. And then we’ll actually do testing twice a year, typically in February and in August, where we do unknown samples on those. So we do a variety of those things to test. If they fall outside the calibration at any of those times, obviously they do have to be calibrated. Or when we work on the optical bench. It is an &emsp; optical-based instrument. So any time you work on the optical bench, by necessity, you have to recalibrated. For example, when we replace the modem — A motor or source is the most logical things because those are the consumable items. When you work on those, or replace either of those, by definition, you have to recalibrate because you’ve changed the operable path. Q. When was this machine calibrated prior to January of 2013? A. I’d have to look it up. I don’t know off the top of my head. Q. And you didn’t bring those records with you? A. I typically bring three months worth of data that I need. The month before, the month of and the month after. And then anything more than that you have to ask me beforehand. MS. KEENE: Judge, may I approach the witness? THE COURT: You may. Q. (By Ms. Keene) Mr. Fondren, let me show you what’s been marked as Defendant’s Exhibit No. 1 and ask you if you recognize what that is? A. I do. This is a document that I put out in April 2001. Q. And is that still — is that a good example for &emsp; — It’s actually on your web page, is it not? A. Oh, is it? Q. I don’t know. A. I don’t know. Q. Is that still a good picture of an Intoxylizer 5000 to show the jurors the basic operations? A. That’s fine. There have been some minor changes. For example, this particular one shows an internal printer. It’s now utilizing an external printer, typical laser printer. So the tray with the pad of paper that you see there would normally have mouth pieces in it now. But other than that, that’s fine. Q. Does it explain the mouth piece, the tube, and how it’s blown into? A. That without a doubt. MS. KEENE: Judge, at this time, for demonstrative purposes, we would offer in Defense Exhibit No. 1. MR. REID: State has no objection. THE COURT: Admitted. MS. KEENE: Judge, may I just hold it, instead of starting up the Elmo, and ask him to explain it? &emsp; THE COURT: You can pass it around, you can hold it. Whatever you wanna do. Q (By Ms. Keene) Tell the jurors what they’re seeing. There’s something called a mouth piece. What are they seeing on the thing that’s called a mouth piece? A. Mouth piece is a disposable piece of plastic. Each individual would get at least one mouth piece. Obviously, the instrument is used for more than one — for testing of more than one person through its career. So each person gets a mouth piece. That what you’ll — what you will blow into. Q. External breath tube. What is that? A. Your breath will travel from the mouth piece through the external breath tube. It is a tube that carries your breath outside of the instrument. Q. All right. And so how — How does this workout? How does a person take a breath test on an Intoxilyzer 5000? A. You would first press the green button, enter some biographical data to the instrument. Or the operator would. Then as the sample — the first sample would be what’s called an air blank where the instrument is setting a baseline saying this will read at zero. Then the message comes across the screen that says &emsp; “please blow.” The operator would ask the subject to take a deep breath, provide a long, steady breath. So you, the subject, will take a deep breath, blow through the mouth piece. You may hold onto the external breath tube, you may not. Personal preference. I describe it much like blowing up a balloon. You gotta blow with a little bit of pressure, but it’s not exceedingly difficult. After the breath is accepted, then the instrument does another air blank, followed by a reference test we spoke of, followed by yet another air blank. And then we’ll come to the second breath sample You collect two measurements. So the two breath samples will comprise one breath test of this person. The instrument does a last air blank and then prints a record. That’s it. Q. And then as the — The intoxilyzer operator – Other than changing that mouth piece, is there any cleaning that takes place on this machine? A. No. Anything like that would be mine. Q. That’s you. A. My responsibility. Q. Do you ever clean the machines? A. I do. Every time they’re brought in for repair into the laboratory it’s gonna be broken apart to see &emsp; what’s there. So when I’m there in the field, if I see excessive anything, I’ll look to see what it is. Q. So on this machine when know, when it came t you 45 days later, you replaced some parts. And that’s when you would have cleaned the machine? A. It would have been — I’ll look at the optical bench to see whether the bench was dirty or what needed to be done. And then while I’ve got the covers off, if I see anything else, it’s dusty inside, then I’ll blow it out with a compressor to remove that dirt. If there’s anything that needs to be replaced tubing wise, the I replace it at that time. Q. Is there any sort of a breath sample that is maintained so that the defense can retest it later? Just here’s a breath sample. It’s maintained so that we call all look at it later from a different lab to determine if it is accurate or not? A. There is not. That’s one of the problems with breath testing as a whole. It is what’s called a destructive test. You cannot preserve that sample. Q. A blood test you can? A. You can. MS. KEENE: I’ll pass the witness, Judge. THE COURT: Mr. Reid. MR. REID: Yes, Your Honor, just a brief &emsp; redirect. REDIRECT EXAMINATION BY MR. REID: Q. Mr. Fondren, do you have any reason to doubt the results of the test in front of you based on the fact that this was a Model 68 Intoxilyzer 5000? A. It was an EN. No. It’s still in service today. You could out to Keller right now. It’s still there, still running. Q. And also in regards to defense counsel’s comments about possibly belching before or during the test, is there anything that the Intoxilyzer 5000 itself might do that would notice if someone had belched shortly before or during the test? A. There are. As I mentioned, there are mechanisms and there are checks and balances so that we’re confident that we’re getting the actual results and they are a true representative of alcohol concentration. One of those we look at, simply on the test record, we have two different breath samples. When we belch, we introduce what’s called mouth alcohol. At a period of time, either right before the first breath or after or before the second one, whatever time, we see much more difference between the first and second breath &emsp; samples. So even if we have an instrument that doesn’t recognize it, we have a second built-in system where we look at two different samples. So we duplicate our results. And in this case we’re looking at a difference of what? 006. I don’t see any evidence or suggestion that anything other than a fine breath test is done. MR. REID: Your Honor, may I approach the witness? THE COURT: You may. Q (By Mr. Reid) Could I get the test from you. MR. REID: And, Your Honor, at this time can I publish State’s Exhibit No. 4 to the jury? THE COURT: It’s been admitted, correct? MR. REID: Yes, ma’am. THE COURT: Yes, you may. MR. REID: I’ll pass the witness. THE COURT: Ms. Keene. RECROSS-EXAMINATION BY MS. KEENE: Q. About ten drinks in two hours for a man of 145 pounds? A. Thereabouts. Q. What about three hours? A. Add one. Q. So 11 drinks? &emsp; A. Yeah. Q. So a lot of drinks? A. Depends. I mean, if we’re talking — depends on what you’re drinking. If we’re talking beer, then you’ve got ten times 12. That’s 120 ounces of beer. If you’re drinking wines or if you’re drinking mixed beverages, then not so much. I mean, on a volume basis They all contain about the same amount of alcohol. Q. But certainly a — two and a half times the legal limit is — is certainly intoxicated? A. I typically deal with the word impaired Intoxication is a legal conclusion. Q. I mean, someone that’s a .19 is definitely impaired? A. They are. Q. It’s definitely — This is two and a half times what we think you should be able to drive? A. Over the statutory level. Yes, it is. Q. And the statutory level came because at .08 you’re impaired, you shouldn’t driving? A. Correct. Q. Because you’re not safe? A. I would agree. Q. And so when you’re two and a half times that, you’re really not safe? &emsp; A. I would agree. Q. Any of these machines — I know you’re not in here to testify that machines are infallible. A. That’s fine. Q. Humans are certainly not infallible, are we? A. I would agree. Q. You and I both make mistakes in our lives and our own jobs, I would imagine. Would that be fair to say? A. True. Hopefully that mine are peer reviewed and caught before results go out, but yes. Q. And me too. Mine too I hope. But certainly machines, just like this computer here or even my phone that I love, can mess up and do things that it shouldn’t be doing? A. I would say any instrument, including this one, breaks. That’s why somebody — somebody has to repair it, somebody has to calibrate on a regular basis. Q. And any machine is also — As many times as I think this computer doesn’t work, it also can be only as good as the person operating it, correct? A. I would agree. There are things that the operator who’s administering a breath test must do. Q. And if the operator does things wrong, then it could end up with a result that’s not accurate? Bottom &emsp; line. A. Maybe. You could end up with some procedural issues that allow it to — or prevent it from being entered into evidence. Yes. Q. That’s really all I have. Thank you, sir. MR. REID: State has no further questions. May this witness be excused? MS. KEENE: He may, Judge. THE COURT: Thank you, Mr. Fondren. Call your next witness. MR. REID: State has no further witnesses, Your Honor. The State would rest. HE COURT: Ms. Keene. MS. KEENE: We would call Justin Townsend. And I’ll go get him. THE COURT: All right. THE COURT: Raise your right hand. (Witness sworn) THE COURT: Have a seat and try to speak into the microphone. Ms. Keene. MS. KEENE: Thank you, Judge. JUSTIN TOWNSEND, the witness having been duly sworn, testifies as follows: &emsp; BY MS. KEENE: Q. Justin, could you introduce yourself to the jurors. A. Hello. My name’s Justin Townsend. I’ve been a long life friend of Nick Ramirez for 20 years. Q. I know you’re nervous. Calm down. A. Sorry. Q. Just tell ’em your name. A. Justin Townsend. Q. All right. And how long have you known Nick? A. Since high school. About 20 years. Q. And do you consider y’all to be friends? A. Yes. Q. Back in — on January the 2nd of 2013 — You know why you’re here, correct? A. Yes, ma’am. Q. You and I talked? A. Yes, ma’am. Q. We met for the first time today, correct? A. Yes, ma’am. Q. Back on January the 2nd, 2013, did Nick come to see your mom and you? A. Yes, ma’am. Q. Tell the jurors what kind — Where do you live? A. I live — &emsp; Q. Just in general. The city. A. Garland. Dallas. Q. And so where did — Where did Nick live at that 4 time? A. Fort Worth. Q. All right. So he came from Fort Worth to Garland? A. Richardson. Q. Richardson. Okay. 10 And about what time did he arrive in Richardson? A. Twelve, one? Tell you the honest truth, I don’t know. Q. So in the afternoon? A. I think so. Q. It was daytime? A. Yes. Q. And what was the purpose? What was he coming for? What was y’all’s day? What were you supposed to be doing? A. Every year we eat black-eyed peas with my mother for just good luck. And that’s why he was coming into town. Q. Okay. So he worked on the 1st, so it didn’t happen on the 1st, I assume? It was on the 2nd, &emsp; correct? A. Sure. Yeah. Q. Okay. You just know it was — it was — it was — You know the time period that he got arrested? A. Yes. Q. Okay. So did Nick come and eat black-eyed peas with you and your mom? A. Yes. Q. And — Sometime during the day? A. Yes, ma’am. Q. And about how long did y’all hang out with your 12 mom? A. Couple hours, maybe. Q. And was there anybody else there? A. Her boyfriend. Q. Okay. So your mom, your boyfriend — her17 boyfriend, you and Nick? A. Yes, ma’am. Q. And then was there a time that you and Nick left your mom’s house and went somewhere else? A. Yes, ma’am. Q. And where did y’all go? A. We went to a restaurant called Twin Peaks. Q. All right. And where is Twin Peaks? A. Addison. &emsp; Q. And how far was Twin Peaks from your house in Richardson, your mom’s house? A. Probably a 30 to 45 minute drive. Q. Okay. What did y’all do at Twin Peaks? A. Ate and had a few beers. Q. Okay. And was there anything else that y’al did at Twin Peaks? A. There’s Golden T machines. We played some Golden Tee I believe. Q. What is Golden Tee? A. It’s an arcade game of some sort that you play golf on-line. We paid $5 and played 18 holes of golf. Q. So basically y’all are playing — You guys ate? A. Yes. Q. So you ate the black-eyed peas and then you also ate at Twin Peaks? A. Yes. I don’t remember what he had. Q. Okay. And you had — Do you know how many beers or exactly what all you drank? A. Three beers. We both had the exact same thing. Q. Okay. And at what point do you — is Twin Peaks finished, is it over? A. I couldn’t even give you a good time. You know, maybe nine, if that. Q. Okay. So — Was it closed? &emsp; A. No. Oh, absolutely not. Q. So it was still open whenever y’all were finished? A. Yes, ma’am. Q. And then what did y’all do? A. We actually were planning to leave, and we got to talking when we were walking out, and we actually sat in the car for probably about an hour, maybe an hour and a half. About an hour probably. Q. But it was a significant enough time for you to remember that it was a chunk of time? A. Yes. Q. Tell the jurors. What were y’all doing? We don’t have to know your personal business, but what, in general, were y’all doing in the car? A. We had intentions to leave. And at the time, you know, lots of things were going on in my life and his life. And we just got to talking. Personal things. Talked about wives and just, you know, just life in general. And we just started having a heart to heart and just — just went on and on. Q. Was there any alcohol consumed once y’all left Twin Peaks? A. No, ma’am. Q. And about an hour 30 minutes to eat and an hour &emsp; and a half you guys are in the car? A. Yes, ma’am. Q. Does Nick ultimately leave? A. Yes, ma’am. Q. Do you remember whose car y’all were in? A. We were sitting in my car. Q. Okay. So Nick gets out of your car and leaves? A. Yes, ma’am. Q. Did he appear to be intoxicated to you at all? A. No, ma’am. Q. Did he ever appear that day or night to be intoxicated? A. No, ma’am. Q. If he had got intoxicated, was there a place that you would have allowed — Could he spend the night with you? A. Oh, absolutely. Q. Did you feel comfortable seeing him get out of your car and go get in his truck? A. Yes, ma’am. Q. Were you worried at all about him? A. Not at all. Q. Were you surprised when you found out he was 24 arrested? A. Absolutely. &emsp; Q. So you think it’s about three beers that y’all — that y’all both had, because you had about the same amount during the time period you were at Twin Peaks? A. Yeah. There was three beers. We did take a shot. But that’s all we had. Q. And about — What’s the time period that y’all 8 were at Twin Peaks for the three beers and shot? A. A pretty good amount of time. I mean, like I say, Golden Tee takes about an hour to play with two players. So that was at least an hour. You can’t really eat when you’re playing it, so there’s another 30, 45 minutes. I would say anywhere from, roughly, three hours to five hours, maybe. Q. Okay. So y’all were there for three to five hours drinking three beers. And what type of a shot? Do you remember? A. Probably Rumple-mint. Q. Okay. Do you remember if you would have had those drinks paced out or were they all together? Or how would they have been consumed? A. They were just — However long it takes you to drink beer. You know, like I say, we had ’em together. So when one of us finished, we’d wait ’til the other person finished and then order a second round. &emsp; Q. Do you remember what — what day of the week it was at all? A. Sunday or Monday, maybe. Q. All right. So it wasn’t like the weekend? It wasn’t Friday night, party night? A. Not that I remember. Q. Okay. So you’re here to tell these jurors what? A. Honestly, there had to be some type of error, mistake. I’ve known Nick for a very long time. I don’t believe that he was drunk. I don’t believe that he drank too much. Q. And you were not concerned when you saw him get out of your car that you spent a heart to heart with, get in his car and drive back to Fort Worth? A. Absolutely. Q. You love him? A. Oh, like a brother. Q. And you’re not gonna let him get in the car having drank ten, 15 drinks and drive back to Fort Worth? A. Absolutely. MS. KEENE: I pass the witness. CROSS-EXAMINATION BY MR. MARCUM: &emsp; Q. My name’s Josh. We’ve never spoke, correct? A. Yes, sir. Q. So if you don’t understand anything I’m saying, just stop me and ask me. Okay? Is that fair enough? A. That’s fair. Q. What do you do for a living, sir? A. I am a cloud seller for IBM. Q. Okay. And what did you do back on January 2nd of 2013? A. I worked for software, IBM. Q. Okay. And you’ve known Mr. Ramirez for abou 20 years? A. Since high school. Yes. Q. Did you two meet in high school? A. Yes. Q. Okay. Have you stayed pretty close since then? A. Yes, sir. Q. Approximately how often do you spend time with 19 each other? A. Usually once a week. You know, now or then are you referring to? Now’s a little less, but still at least once a month now. Q. Why is now a little less? A. People, you know, grow up. He lives in Fort Worth. You know, it’s harder to — harder to make &emsp; time, you know, with families and friends. Q. Sure. Would you say you’re a close friend of his? A. Absolutely. Q. Do you know where — where he lived back on 7 January 2nd of 2013? A. Fort Worth. Q. Whereabouts in Fort Worth? A. Never been really. Q. You’d never been to his house? A. Been there twice. Q. Okay. If I said on Searidge Drive in Fort Worth, would that sound about right? A. Yes, sir. Q. And you say you’ve been there before, correct? A. Yes, sir. Q. So that address is actually substantially south of Fort Worth, is it not, of, like, the building where we’re sitting in today? A. Probably west — or east, southeast. Q. Okay. So it’s down 35 from here? A. Sure. Q. And then to the west of that, correct? A. Sure. &emsp; Q. And y’all were hanging out in Richardson; is 2 that correct? A. That is correct. Q. Which is northeast of here? A. Correct. Q. Okay. So he was going from northeast to southwest after he left you, correct? A. Yes, sir. Q. Do you know where Southlake is? A. No, sir. Q. In your opinion, when he left you, he was okay 12 to drive? A. Yes, sir. Q. So he was not intoxicated? A. That is correct. Q. Tell me what the word intoxicated means to you. A. Means slurring your words, can’t stand up, can’t walk. That pretty much sums it up, intoxicated. Q. Can’t stand up, can’t walk is intoxicated? A. Can’t talk, slurring. Q. So as long as a man can walk, a man can drive? Is that basically it? A. Well, among other things. I mean, like I said, 24 slurring. You know, I guess legally there’s .08. Q. So if somebody’s above .08, they’re &emsp; intoxicated? A. Alcohol hits different people different ways. I wouldn’t say that someone that’s over .08 is intoxicated at all times. Q. So if you say that Mr. Ramirez wasn’t intoxicated on this date, I guess it’d be fair to say you’ve seen him intoxicated before? A. That is correct. Q. About how many times? A. Over 20 years, handful of times. Q. How many drinks does it take for him to get intoxicated? A. It’s tough to say. I mean, alcohol, beer, liquor? I don’t know. Q. How does he act when he’s intoxicated? A. Happy. Q. So y’all were drinking in Richardson, and you stopped at about nine p.m. Right? A. Sure. Q. Not sure. Is that a true statement? A. True. Q. Okay. And then you were out in your car for about an hour? A. Yes, sir. Q. So that brings us to ten p.m. And then he left &emsp; your sight, correct? A. Yes, sir. Q. What did he do between ten p.m. and 12:56 4 p.m — or 12:56 a.m.? A. I don’t know. Q. That’s about a three hour period, isn’t it? A. Like I said, I’m not 100 percent on what time 8 things — I mean… But, yes, that is a long… Q. So at least two and a half, three hours, correct? A. By your calculations, yeah. Q. Have you seen the video in this case? A. No, sir. Q. Have you seen the video? A. (No response) Q. No? A. No, sir. Q. If Mr. Ramirez had told a police officer repeatedly that he didn’t have anything to drink, that wouldn’t be true, would it? A. That’s correct. Q. And do you have any police training or experience? A. No, sir. Q. Who do you think would be a better judge of &emsp; Intoxication? A trained police officer or you? A. Well, a trained police officer, but he also doesn’t know Nick. So in this case, knowing someone for 20 years I would think that I’m a pretty good judge. Q. But you don’t know what Nick was doing for three hours after you saw him? A. I don’t know for 100 percent, no. MR. MARCUM: Pass the witness. MS. KEENE: I don’t have any further questions, Judge. THE COURT: All right. Thank you, sir. You may step down. Let’s take a quick break. Jordan, if you’ll take them back, please. (Open court) THE COURT: Bring them in. (JURY PRESENT) THE COURT: All right. You may be seated. Ms. Keene. MS. KEENE: Judge, we’d call Nick Ramirez. THE COURT: All right. Mr. Rameriz. Raise your right hand, please. (Defendant sworn) &emsp; THE COURT: Okay. Ms. Keene, you may proceed. MS. KEENE: Thank you, Judge. NICOLAS RAMERIZ, the defendant having been sworn, testifies as follows: DIRECT EXAMINATION BY MS. KEENE: Q. Nick, look at the jurors and tell ’em what your name is. A. Nicolas Ramirez. Q. And you are the person that’s been charged in this case; is that correct? A. That’s correct. Q. And so you know what we’re here to talk about? A. Yes, I do. Q. Back in January 2013, where did you work? A. I was a police officer for City of Fort Worth. Q. And how long had you been a Fort Worth police officer? A. I was a police officer for four years. Five years, if you count the academy. Q. And were you assigned to DWI? A. Yes, I was. Q. What does that mean, to be assigned to DWI? A. Means, basically, you’re concentrating on DWI &emsp; enforcement and that’s pretty much all you do. Traffic violations that lead up to DWI detection. And you’re not so good to call or answer calls for service, which is DWI, DWI crashes, and highway enforcement also. Q. And before you became a Fort Worth police officer, were you — did you work in law enforcement? A. Yes, I did. Q. And where did you do that? A. I worked for the City of Carrollton for two years as a jailer, and then I worked for the City of Mansfield for three years as a jailer. Q. And so from Carrollton to Mansfield to Fort Worth, is that kind of the law enforcement jobs that you had? A. Yes. Q. As a result of being arrested for DWI, Fort Worth at that time, and probably still today, have a policy that you get fired, correct? A. Yes and no. Before the policy — before the outcome of the case, they changed that policy, and I was the first one to be fired. Q. Okay. So you were the first of the “let’s change the policy,” then you got fired? A. Correct. Q. And now you get fired if you get arrested for &emsp; DWI, as far as you know? A. Yeah. I don’t know. I’ve been gone for a while now. Q. Well, where are you working now? A. I’m working for Amazon. Q. And where is — Where are there? A. In Haslet, Texas. Way up 35. It’s a little outside of Fort Worth. Q. Okay. So back in January the 2nd of 2013 you were working for Fort Worth Police Department and you were working as a DWI officer? A. Yes. Q. And you got arrested for DWI? A. Yes, I did. Q. What had you been doing the days prior to that, January 2nd? A. I was on duty DWI. Prior to that I worked New Years. I worked all night. Our shift is from eight to six. Ten hour shifts. I ended up getting home about ten a.m. January 1st, slept for a little bit, got up. And as a tradition for the New Year I went down to Justin’s mom’s house to have black-eyed peas and cornbread like we usually do. So I only got maybe four or five hours of sleep. Q. Okay. So, basically, you’d been working? You &emsp; worked New Years Eve? A. Yes. Q. And so New Years Day you went to Justin’s. Justin was in here testifying. A. Correct. Q. You went to his mom’s house? A. Yes. Q. As a tradition? A. Yes. Q. And what did y’all — What do y’all do as a1 1 tradition? You eat the black-eyed peas? A. Eat black-eyed peas and cornbread and hang out. Pretty much the only time I really get to hang out and catch up. Q. And so you’ve known his mom for 20 years as well? A. Yes. Q. She’s seen you grow up? A. Pretty much. Q. Okay. Where is your family? Where are you from? A. I’m from Dallas, Texas. Same place. Garland. Born in Plano, raised in the Garland area, Richardson. Been out here in Fort Worth for — working for the City of Fort Worth as a police officer. &emsp; Q. And so when you went back to see your friend there, that’s also where your parents live? A. Yes. Q. Okay. But on New Years Day you went and saw Justin and his mom and her boyfriend? A. Yes. Q. About what time did you and Justin leave the mom’s house? A. We actually left — I know I got there before it got dark, left when it got dark. So at that time probably 6:00, 6:30 p.m. Q. Okay. And you’ve had — And you’ve had a lot of time because of — This was a transformative event in your life, correct? A. Yes. Q. It was not a transformative event for Justin, correct? A. No. Q. But you certainly had a lot of time to look back on things that you did or didn’t do correctly on that night? A. Yes. Q. Judged yourself according to, correct? A. Yes. Q. So about dark — is that what you’re saying?– &emsp; you left her house and headed to the restaurant? A. Yes. Q. And what was the name of the place? A. It was Twin Peaks. Q. And how — Where is Twin Peaks? Or where was it back in January? A. It was on Addison and the Tollway. Sorry. Beltline and Tollway in Addison. Q. Okay. And what did you and Justin — So just you and Justin, or did y’all meet other people? A. No. It was just me and Justin. Q. All right. What did y’all do at Twin Peaks? A. We had alcohol, played Golden Tee and ate some food. Q. And do you know how much alcohol you had? A. Had three beers and a shot. Q. Okay. Do you know the order or how that took place? A. When I drink I like to judge, you know, a beer an hour just to be safe. I know when beer dissipates the body. .015 an hour. So that’s pretty much a beer an hour. Q. So about how long did you stay at Twin Peaks? A. We got there about seven. We didn’t leave — walked out, I wanna say, about eleven and talked for an &emsp; hour and left the parking lot at twelve. Q. Okay. So — And you remember this all, correct? A. Yes. Q. This is not some blackout night, is it? A. No. Q. All right. So you — You leave Twin Peaks and you end up in the parking lot with Justin in Justin’s car? A. Yes. Q. And we don’t care about y’all’s personal business, but the general gist, what were y’all talking about? A. At that time he was on the verge of getting a divorce. He was talking about what was going on. With working the DWI unit and living so far I hardly ever get to see him now. So when we see each other, we just kind of catch up and talk. Q. So you guys are in a car — basically, your friend’s hurting, he’s — he’s having some struggles in his personal life and you’re listening and talking to him? A. Correct. Q. And even though y’all hung out at Twin Peaks, this was a different conversation that y’all were having &emsp; out — out in the parking lot? A. Yes. Q. Was there any alcohol in that time in the parking lot? A. No. Q. Okay. Then it’s about what time that you leave Justin in the parking lot, get out of his car and leave? A. About twelve. About midnight. Q. About midnight. All right. So what did you do? You get out of his car, get in your car. A. Yes. Q. We’ve seen the black truck. What do you do now? A. Leave the parking lot and just start heading home. Q. If you felt like you had too much to drink, would you drive? A. Oh, no. Q. Why? A. I have a place to stay with him or he can take me back to his place and I can sleep it off and come back and drop me off at my truck the next day. Q. So you’ve got parents, you’ve got Justin’s mom, you got Justin. You got a ton of options if you want to stay over there. &emsp; A. Yes. Q. If you drank too much? A. Yes. Q. And certainly, because of your job, how important was it that you — Did you understand the significance of drinking and driving? A. Oh, I understand it very well. Q. Okay. So when you’re in your car and now you’re — you’re getting out of Justin’s car, getting in your car, did you have any concern about yourself driving home? A. No, I did not. Q. All right. So what did you do? So you drove home. A. I drove home. Q. Where — Where was home back then? A. Southwest Fort Worth. At my current address. Where I’m at now. Q. Okay. We don’t need to go into your current address. But, basically, it’s — it’s not Southlake, is it? A. No. Q. All right. So tell the jurors how do you end up from Richardson — or, basically, north Dallas to Southlake as opposed to the other side of Fort Worth. &emsp; A. I took 635 all the way up to where it changes to 121 and changes into 114 by the airport. And at that time there was a lot of traffic — or not traffic, a lot of construction. I’m trying — If you stay on the left side of the highway, then you’ll end up on 121; if you stay on the right side, you’ll end up at 114. But during all the construction they swapped the exits. So I ended up going northwest on 114. I wasn’t in a rush to get home or anything. I’m just driving. Driving at night is normal to me because I work nights and I drive around. So as soon as I realized, I’m looking at the exits, that I’m going into Southlake, I was kind of determining if I wanted to take — just keep on going north and take 170 across and then down 35 or do a U-turn and come back through and take 190. Q. And, Nick, how are you making that determination? I know in your head you’re doing, but were you doing anything else? A. Yeah. I was on my phone looking at which way was actually the quickest route. Q. So you actually had your — the map up on your phone? A. Yes. Q. And do you think you ever swerved? &emsp; A. No. Q. Okay. You’re looking at your map. What do you think he saw? You’ve listened to all this, they’ve listened to all this. What do you think he saw? We all watched a little bit. A. Honestly, I really — I really don’t know. I don’t know. I mean, he says I drove on the shoulder, but — Q. No, no, no. We’re gonna get to that. I’m talking about that first thing he says he saw when you’re coming — changing lanes and you ultimately get off. A. He thinks I was straddling the line. Q. What was really happening? A. I was making a lane change from the fast lane, the far left lane, to the middle lane. Q. And then did you ultimately exit? A. Yes. Q. And used your — we all saw it. Used your — your blinker? A. Yes, I did. Q. When you got off, what was your intent then? To flip a U, then go back to Airport Freeway, basically? A. Yes. I made a decision that it’d probably be better just to turn around. And so as soon as I changed &emsp; lanes, I exited and did a U-turn on the turnabout. Q. And now this is the point where he said that you went over into the shoulder, the portion that’s not on the video. Did you ever do that? A. No. Q. You remember this evening? A. Oh, yes, I remember it. Q. All right. So you’re driving along now. At some point lights come on? A. Yes. Q. And it’s a police car? A. Yes. Q. And what do you do? A. I immediately pull over. Q. Okay. Is there anything about this 25 second thing — because you used to be a cop — that you saw that looked concerning, even looking back? A. No. Watching the video, as soon as the lights come on, I seen they come on and I immediately get over. Q. And got over safely? A. Yes. Q. And why is it important to park the way that you parked? A. The way the road’s set up, if I just parked on the shoulder, just straight, that would leave him out in &emsp; the exit lane. So I went way over on the shoulder, came back in and canted my car so the officer had the whole shoulder to work with. And it’s easier to approach me, look in the vehicle and see everything that’s going on before he even gets to my car. Q. You were actually being considerate of a police officer? A. Yes. Q. You understood if people did that to you, you’d like that, right? A. Yes. Q. Okay. So was that any clue, hey, I’m a cop, let me go from my DWI? A. That wasn’t my intention. It was — It’s more safety. Like he said, accidents happen on the highway. If you get hit… It’s a safer way to protect yourself parking that way. Q. All right. So now he approaches you. And what happens next? I mean, they’ve watched a lot of — they’ve watched the video. But tell us from your perspective what was happening, what’s going on in your head. A. I had my driver’s license, insurance out. I do have a tri-fold wallet that has a badge in it, but my insurance is also in there. My driver’s license also in &emsp; there. And I showed him my badge and told him I have a gun and that I’m a police officer so he doesn’t feel threatened. Q. Okay. So — so — and you’re not — you’re not intoxicated, correct? A. No. Q. So what you wanna make sure the police officer knows in the middle of the night is, first of all, here’s my ID, here’s my insurance. That’s considerate to do when you’re pulled over, correct? A. Yes. Q. And you also need to know I’m a police officer and I have a weapon? A. Yes. Q. For everyone — no one to freak out and just everybody’s safety? A. Yes. Q. And then he begins to ask you questions about whether or not you had been drinking? A. Correct. Q. How come you — because you had drank, correct? A. Yes. Q. Some beer and a shot? A. Yes. Q. How come you would lie to him? &emsp; A. From our experience, it’s just a general question. Late at night you’re driving. First question out of your mouth is gonna be “Have you been drinking tonight.” And I know what happens when you say yes. They’re gonna come out, they’re gonna do the test. I knew I didn’t smell like alcohol, I knew I wasn’t intoxicated, so I said no. Q. It’s just easier? A. It is. Q. I mean, the reality is you were a police officer. If you pull me over, really any time but certainly at nighttime, and if you ask me if I’ve had something to drink, and if I go, yes, police officer, I have, then the next thing I will be out there doing field sobriety tests? A. Yes. Q. And so you know that? A. I know. Q. And so you said no. Correct? A. Yes. Q. He began to have — They’ve seen his attitude on there towards you. How did you take that? A. I was just following his directions and doing what he told me to do. Q. So you just, basically, submitted to him? Or &emsp; is there a better word? A. I’d say, yeah submitted to him. Q. When you got out of the car and he was doing the horizontal gaze nystagmus test, and looking back on this and reading through his record, there were a number of things that were just not correct about how he did it. Is that correct? A. That’s correct. Q. But you didn’t, like, call him out on the side of the road? A. No. Q. Okay. And when he leaves you — There’s a point where he leaves you for five minutes on the back of your truck. First of all, how cold was it out there? A. The temperature in my truck was about 28 degrees. Q. And so what’s it like to be outside without your coat? A. Freezing. Painful. Q. Okay. You’re not — I’ve got some extra weight on me, so I can take a little more coldness, but you’re not. What was it like that night? A. Very cold. I mean, you could see my breath and his breath in the video. Just really, really cold. Q. Okay. And were you doing — Were you &emsp; cooperating with him? A. Oh, yes. Q. And so when he sat you on the back of the truck, is there anything going on in your head? Are you thinking anything? A. I’m a little freaked out. I’m worried. It started from him talking to me at the driver’s door. Just admitting I had alcohol. I said I would do the SFSTs. I think you hear it on video. He says, “If you don’t do it, you’re going to jail and we’re gonna get a warrant without any tests or anything.” So — Q. Absolutely. A. — I did the test. Q. Yeah. I get that. And so when he comes back — So a lot of things are going on in your head? A. Oh, yeah. Q. Now he comes back and you’re gonna do the walk and turn test. And you know what the walk and turn test is, correct? A. I do. Q. And you do it. They saw you do it. You begin. And it doesn’t begin perfect. And then you take your shoes off. Tell the jurors about what was happening there. &emsp; A. The shoes I have on are slip ons with no backing. And getting in the position to put one foot in front of the other, when I did that, when I was lining up, you know, my shoe came off a little bit. So I stopped the test and told him about my shoe, if I could take ’em off, because I know they’re gonna affect my balance. Q. And did you actually bring those shoes with you so the jurors can see what they are? A. I did. Q. The shoes you refuse to wear anymore? A. Yeah. MS. KEENE: Judge, may I approach the witness? THE COURT: You may. Q. (By Ms. Keene) We’ve got two shoes here labeled Defense Exhibit No. 2. Are these the shoes that the jurors saw you kick off and begin to do the walk and turn? A. Yes, they are. MS. KEENE: Judge, I’d offer in Defense Exhibit No. 2 at this time. MR. MARCUM: No objection. THE COURT: You sure you want it in? Because you won’t get it back. &emsp; MS. KEENE: I asked him that. He’s over these shoes. THE COURT: Admitted. Q. (By Ms. Keene) Explain to the jurors how this back, or lack of a back, is gonna hurt you or how this walking heal to toe is supposed to work? A. When you walk heal to toe, essentially, you know, you want heal to toe. So if your foot’s in there and you’re doing heal to toe or even standing in this position and your foot, you know, slides out, you’re pretty much gonna lose balance. There’s no support or anything. Q. And how different is wearing these — they are nice Uggs — nice Ugg slip-ons as compared to your Fort Worth Police Department boots? A. Way different. I wear high-top boots, so there’s a lot of support on your ankles. You’re not gonna do — When you’re standing on one foot, you’re not gonna do that motion, or even standing like this, even though your leg’s kind of, I guess –. Q. So you could feel that and knew this was not working out and so you take these off and throw them to the side and then you did the walk and turn? A. Yes. Q. And did you — You know what a correct heal to &emsp; toe walk is. Did you do that? A. Yes, I did. Q. And yet he failed you for that walk and turn test. Does that surprise you? A. Does it surprise me? No. Q. Okay. You did not have a big gap between your toe and your heel? A. Correct. Q. Correct? A. That’s correct. Q. Once you took the shoes off, you’re able to nail it and do it correctly? A. Yes. Q. Even though it was really cold? A. Yes. Q. And how does that affect you on that night, it being so cold? I mean, the way that you were without a jacket and we’re now at about 10, 15 minutes. A. Shivering. I mean, you can see in the video where I’m tensed up, trying to keep warm, legs shaking. It’s really — It’s really hard to balance and move around when it’s that cold. Q. Have you had any sort of back surgery? A. Yes, I have. Q. What sort of surgery have you had? &emsp; A. A herniated disc in my lower back that was lanced off. And so… Q. Will it tighten up sometimes in life? A. Yes. If I — You know, if I sit too long or if I do something a little too quick, it’ll tweak or I can feel the muscles tighten up. Q. And do you have a scar on your back to show where you had surgery? A. Yes, I do. Q. And is it — Is it in a place that you could show us without, you know, disrobing or anything? A. Yes. MS. KEENE: Judge, may he do that? May he show them his scar? THE COURT: Certainly. MS. KEENE: If you’ll just get in your — I mean, I think he can probably do it from — THE COURT: Now, where is this scar? MS. KEENE: It’s on his back. THE WITNESS: Right above the waistline. Q. (By Ms. Keene) So it’s right — What we’re pointing to, basically, it goes here, then it goes down your back? A. Yes. Right on the spine right here. Q. Yeah. A. About two inches. Q. Okay. That’s where you had the back surgery? A. Yes. Q. Okay. So when you get to the one-legged stand, the police officer, Rodriguez, told you to put those shoes back on? A. Yes. Q. How come you didn’t tell him I’m ain’t gonna put those shoes back on? A. I was pretty much in a submissive mode. I’m not gonna argue with him when he tells me to do something. I just didn’t wanna seem confrontational with him. Q. Okay. So you just put the shoes back on. You don’t tell him. And he asked if you’ve got any problem with your leg. You didn’t tell him, dude, I got a big back that you can’t believe — a big scar on my back. You just put the shoes back on an attempted the one-leg stand? A. Yes. Q. And did not do great at it. A. No, I didn’t. It was really freezing. It’s hard to do when you’re that cold. These shoes don’t help either. Q. Well, it’s just hard to do, period. It really &emsp; is. But on the tape, can you tell when you go “ahhh?” You’re like, man. You could tell. A. Yeah. I already knew, you know, I messed up. Q. I’m in for the evening — A. Yes. Q. — at that point? A. What was the question? Q. That you were in for the evening at that point. A. Oh. Yeah. Q. Did you kind of already know that prior to that? A. Yes. I knew it when — When he was talking to me at the driver’s door, I knew I was gonna pretty much be going to jail. The only thing I could do was kind of show that I wasn’t intoxicated by doing the test. Because if I refused or didn’t do the test, I mean, there wouldn’t be any — no evidence that I could do the test. Q. Okay. And so then you get to — he chooses to arrest you and you go to the police station? A. Yes. Q. And you — They asked — You had a right to refuse to do the breath test? A. Yes.&emsp; Q. But you told him you would do a breath test? A. I did. Q. And you did a breath test? A. I did. Q. And it said that you were, basically, two and a half time the legal limit? A. Yes. Q. You have — since this time you have – In fact, I think I’ve asked you to do experiments on yourself with the breath test. How — what — What are you like at a 19? Take yourself to — MR. MARCUM: I’m gonna object to foundation, Your Honor. Breath test. There’s no indication of what instrument they’re using, whether it’s reliable or anything like that. There’s no foundation. THE COURT: Well, let’s finish. Let’s start that question again and finish it. Q. (By Ms. Keene) Do you know what you’re like at a .19 breath test? A. I do. Q. And are you anything like what we saw on that videotape? A. No way. &emsp; Q. What are you like at two and a half times the legal limit? A. I’ve been to that level once. Pretty much when you wake up, you don’t remember what happened. It’s passed out, puked. And you just don’t remember anything. Q. This was not blacked-out Nick Rameriz on this videotape? A. No. Q. This was had-some-beers-with-a-friend-over-a-long-period-of-time Nick? A. Yes. Q. Did you feel like you were safely driving that night? A. Yes. Q. Do you feel like you had the normal use of your mental faculties? A. I did. Q. What about your physical faculties, your normal use? A. Yes, I did. Q. Do you have any idea — I know you’ve done a lot of research, because we’ve certainly talked a lot — about how that breath test could have come out as high &emsp; as it did when you just weren’t — you just weren’t intoxicated? A. Yes, we had that conversation. Q. And you have theories as to how that happened? MR. MARCUM: Objection, Judge. This witness isn’t an expert. There’s a lack of personal knowledge and a lack of foundation for this line of questioning. THE COURT: Sustained. Q (By Ms. Keene) When you were a DWI police officer, did you get training in the Intoxilyzer 5000? A. Yes, I did. Q. And did you get training in how to operate the Intoxilyzer 5000? A. Yes, I did. Q. And based on your training and experience as a Fort Worth police officer during that time period, and looking over it with that training and experience, do you have an idea of how that machine said that you were a .19 if you weren’t? MR. MARCUM: Still objecting, Your Honor. If he has experience as an intoxilyzer operator, that doesn’t mean he can testify as to the underlying scientific theory of the intoxilyzer. THE COURT: Overruled. He can answer. &emsp; A. (The Witness) Can you repeat the question again? Q. Yeah. Do you know — how did it — How did it end up being a .19? A. There’s a couple ways. If you do burp, it’s gonna bring out a higher reading. Like the other intoxilyzer said [sic], if you blow five, six, seven stars or you blow real hard into it, you’re gonna get a really high reading like he said. If the machine’s not calibrated right. There’s all — There’s different ways that you can have a false reading. Q. The bottom line is you know what you were? A. Yes. Q. And you know more than what any machine would say you were? A. Yes. Q. And you knew — You felt confident to blow into the machine? A. Yes, I did. Q. And felt like what — what — What did you think was gonna happen? I mean, you blow into the machine. What do you think is gonna happen? A. The last part to prove that I wasn’t over the legal limit was to give a breath sample. When the breath sample was completed, I was looking to go home. &emsp; Blow into it, .08, and go home. Q. So you’re thinking the nightmare’s gonna end. I’m gonna go give this breath sample and I’m done with this Keller Police Department place? A. Yes. Q. And that’s not what happened? A. No. Q. And for two and a half years you’ve been waiting for this trial? A. Yes, I have. Q. It’s important to you? A. It’s very important to me. MS. KEENE: Judge, may I approach the witness? THE COURT: You may. Q. (By Ms. Keene) Mr. Ramirez, let me show you what has been marked as Defense Exhibit No. 3 and ask you if you recognize Exhibit No. 3? A. Yes, I do. Q. And would Defense Exhibit No. 3 help you to explain to the jurors what that road looks like out there with pictures from it during the daytime as well as screen shots from the video? A. Yes. Q. And would help show them how the lanes change &emsp; and how it curves, et cetera? A. Yes. Q. And this would help explain what happened or what the police officer would have seen or not seen? A. Yes. MS. KEENE: Your Honor, at this time we would offer into evidence Defense Exhibit No. 3 into evidence. MR. MARCUM: I won’t object. THE COURT: Admitted. MS. KEENE: And, Judge, may we publish this by using the Elmo and then letting him talk? THE COURT: You may. Q (By Ms. Keene) Is there one of these up there? A. Yes. Q. The yellow button is… What is this showing the jurors, this first picture? A. This looks like the curve. I was coming up 114 northwest. This is — This is where the officer was probably sitting. Over here somewhere. Well, probably way down here. Q. So this is the curve that you were changing lanes in the middle of? A. Yes. Further — Right down here I was changing &emsp; lanes. Q. All right. Is this a little bit closer picture 3 of it? A. Yeah, it’s a better view. Q. And so is there actually a lane that’s coming in over here as well? A. There should be a exit ramp lane coming up. Q. Okay. This another picture showing that? A. Yes. Q. All right. So, basically, this is the curve that you’re coming around and the police officer’s somewhere up in here? A. Yes. Q. And so what were you attempting to do? What were you doing? What did he see you doing in about this area? A. He saw me in the middle of a lane change. Q. Okay. And where were you headed? Were you headed to this exit here? A. That exit, yes. Q. All right. And is this an overview of that area, a Map Quest overview, if they wanna look at it and see the different lane changes? A. Yes. Q. Is this now — What is this? &emsp; A. This is same road, 114, with the exit sign that I — or the exit that I took. Q. And so right over here would have been where the police officer is? A. Yeah. I believe he — Q. Maybe a little — A. A little bit back. Q. Okay. And then it says “video begins.” So this is about where the video begins piping in, correct? A. Yes. Q. And then along the way there’s also screen shots if the jurors wanna look at it. It’s hard to see. A. Yeah. That’s the officer stationary. Q. And then heading up Davis Boulevard, what is this showing the jurors? A. This is the exit I took. Q. Okay. So they saw you drive up, or at least every now and then they’d see you. Does this continue to show that exit? A. Yes. Q. And what about this one? A. The same. Q. And then that’s a screen shot to show ’em how it relates to the video, correct? A. Yes. &emsp; Q. All right. What about this one? What is this one showing the jurors? A. This is the service road where I’m approaching the light where I do the U-turn. Q. Okay. And then that’s the video showing the same thing we’re seeing live? A. Yes. Q. All right. So now this one, what is this picture showing the jurors in here? A. This is showing where I’m coming up on the U-turn at the light. Q. And so you had a choice — Right here is the U-turn, isn’t it? A. Yes. Q. And then right here is a go straight or you can turn left there as well? A. Yes. Q. And then here’s a go straight? A. Yes. Q. And here’s a go straight. So you had a lot of lanes that you would have had mental faculties – use your mental faculties to figure out which one to flip a U? A. Yes. Q. All right. And this is another one showing it &emsp; a little closer up, isn’t it? A. Yes. Q. And which one did you ultimately, that we saw in the video, pick? A. I took the far left lane. That’s the U-turn only. Q. Okay. Is that this one right here? A. Yes. Q. And so they — the jurors saw that in the videotape as well of you driving around the circle. Correct? A. Yes. Q. They saw you yield down here. Correct? A. Correct. Q. In fact, this is a picture of your car on the video, so it’s a screen shot showing the brakes on, isn’t it? A. Yes. Q. All right. Now, this –What is this showing them? A. That shows, after the U-turn, the service road leading back up to the highway. Q. Okay. And then this is the appropriate part in the videotape, correct? A. Yes. &emsp; Q. And then what about this tape — I mean, this picture? A. This is getting back on the highway, but you can’t see that in the video. Q. Because this is when it’s turned to the left? A. Yes. The camera. Q. In fact, it’s turned to where at some point we’re gonna see the — There’s where you’re talking about. Where you get on and now here’s the freeway? A. Yes. Q. And what is this building down here? A. Looks like a motel or hotel. Q. That’s the hotel that we ultimately see. And here’s a — here’s a little bit closer up of it that is lit up and you can see it on the video? A. You can see the neon sign. Q. Right here on the video? A. Yes. Q. Okay. And so all this time period is really relatively straight. It’s got a small curve here in which he’s saying you’re swerving off on the – the roadway? A. Yes. Q. And you never served off on the roadway? &emsp; A. No. Q. There’s your car in view. And then what is this showing the jurors? A. Same — same road after — still 114. Q. Okay. Then there’s the appropriate part on the video that they saw, correct? A. Yes. Q. And then this one, what is this — this – this part right here showing the jurors? A. The lane I was in. And I did drive over the white line that sticks out. Q. And at the exact time this picture’s taken that car has driven over the white line, the same white line that you did in the video? A. Yes. Q. Are there some places on freeways that are just — I don’t know — stick out so to speak? A. Yes. Q. But neither here nor there, just happened to be taking picture, we go back and look at it, and here’s the car on the same line that you hit, here’s a car hitting it? A. Yes. Q. In the middle of the day, correct? A. Yes. &emsp; Q. And then there’s, of course, the picture — There’s the picture of you hitting that same – same exact place really. Is that correct? A. Yes. Q. All right. So now what is this showing the jurors? A. Same — same road. Q. So just heading into really about the place that — This is you driving. Is that correct? A. Yes. Q. All right. So now it’s getting into where you were stopped. Is that correct? A. Yes, we’re getting close. Q. Then there’s the appropriate screen shot and then there’s the white chapel and Dove Road. And then is this gonna show the jurors about the spot where you’re getting pulled over? A. Yes. Q. And where is that? This is that Southlake sign. A. Yes. We passed a entering Southlake sign. It’s on the right side of that picture. Q. Okay. And so here’s another picture and there’s that sign. It’s easier to see here than it is on that. But, basically, these pictures — And then &emsp; here’s — here’s you pulling over. Show the jurors if they wanna look at it. Kind of helps put into place reality with — daytime reality with the video, don’t they? A. Yes. Q. There’s White Chapel. And then there’s you being pulled over. Is that correct? A. Yes. Q. Okay. Have I missed asking you anything, Mr. Ramirez? A. I — Q. You don’t think so? A. I don’t think so. MS. KEENE: Then, Judge, I pass the witness. THE COURT: Mr. Marcum. MR. MARCUM: Thank you. CROSS-EXAMINATION BY MR. MARCUM: Q. Had you ever met Officer Rodriguez before the night of this stop? A. No, I did not. Q. So no bad blood between you and Officer Rodriguez, correct? A. Correct. There’s still no bad blood. &emsp; Q. How about Officer Salvato? You ever met him before? A. No, I have not. Q. You had met Mark Fondren before today, correct? A. I don’t believe I have. Q. Were you not an intoxilyzer operator at one time? A. Yes. Q. So Mark Fondren would have been your technical supervisor if you were in Fort Worth. Is that correct? A. Yes. Q. Okay. But you don’t know if you’d ever met him before? A. I’ve never met him in person. I’ve just heard his name. Q. So you were certified as an intoxilyzer operator? A. Yes. Q. And did you perform breath tests on people? A. I did. Q. Approximately how many times? A. Over a course of maybe ten years, a few hundred. Q. It’s true that if you — Well, it’s true that if the steps are taken properly, based on your training &emsp; and experience, the test is reliable, correct? A. If you follow procedures, they can be. Q. So are you saying that the couple hundred times you did breath tests you were assisting and convicting people who were innocent? A. From what I know now with all the faults they don’t tell you in training, you know, there could be false/positives out there. Q. Let’s talk about your training as a police officer. Did you go through the police academy? A. Yes, I did. Q. During that police academy, did you have training in standardized field sobriety testing? A. Yes, I did. Q. What did that training involve? A. It involved SFSTs. The walk and turn, one-leg stand and an alcohol course. Q. And as part of that training, did instructors watch you perform field sobriety tests? A. Yes. Q. And as part of that training, did you demonstrate field sobriety tests? A. Yes. Q. And so did you successfully complete all that &emsp; training? A. Yes, I did. Q. And not only did you become a police officer, you became a DWI enforcement officer, correct? A. Yes. Q. So did you have any additional specialized training in standardized field sobriety tests? A. I did. Q. And at the time of your arrest you were a DWI enforcement officer, correct? A. Yes. Q. In time — How long prior to your arrest had you made your last DWI arrest? A. Well, say that day, that morning. Q. And so the arrest that you had that day, what was your part in that? A. I believe it was an accident that I responded to. Person left the scene, ended up coming back. The witness identified him. Took him to jail, I believe. He refused and I got a warrant for blood. Q. Okay. We’ll talk about that in a second. Refused and got a warrant for blood. That’s interesting that you said that. Before your — Before this arrest, when was of the last time you demonstrated standardized field &emsp; sobriety tests for a DWI suspect? A. When was the last time I demonstrated? Q. Yeah. A. That day, that night. I worked the night of January 1st and the 2nd, 2013. Q. So somewhere around that time you were out on the side of the road, or someplace, and you physically demonstrated the walk and turn test for a suspect? A. Yes. Q. And you physically demonstrated the one-leg stand test for a suspect? A. Yes. Q. Was it cold? A. No. It was pretty early. It was, like, ten, eleven at night. Q. And your back surgery. When did you have that? A. 2001, 2002. Q. So a long time before you became a Fort Worth police officer? A. Yes. Q. So before you had any training in field sobriety tests. How many times would you say you’ve done the walk and turn, either demonstrating it for someone or in training, since you became a police officer? &emsp; A. I performed it quite a few times. Q. What’s quite a few? A. Couple — couple hundred probably. Q. Couple hundred times. What about the one-leg stand test? A. Same. Couple hundred. Q. You would have performed the one-leg stand about the day before, or thereabouts, during your DWI investigation, correct? A. Yes. Q. Did you look the same as you did on the video when you were demonstrating? A. No. Q. Police department’s probably not gonna let you arrest people for a one-leg stand if you look that when you’re demonstrating it, right? A. Right. Q. So you know how to perform these tests and you can do them, correct? A. Under uncertain circumstances I can. Q. Well, you’ve done them hundreds of times. A. But not in freezing weather without a jacket or any other warm clothing. Q. So you’ve never worked nights over the winter as a police officer? &emsp; A. I do, but I have layers of clothes and different shoes on. Q. You could have asked for your jacket, correct? A. Yes. And at one point I did. Q. When? A. When we were on the side of the road — or off to the side, I asked if I could get my jacket. He said “The patrol car’s warm, but I’ll get your jacket.” Q. That was after — That was after you performed the walk and turn and the one-leg stand test, correct? A. Yes. Q. You were already arrested? Or were going to be placed under arrest? A. Yes. Q. When — The officer told you, when he had the initial contact with you, that he would arrest you for DWI and get a warrant. He didn’t tell you anything that was untrue, correct? A. No. Q. As an officer if you pull someone over and they show signs of intoxication — odor of alcohol, bloodshot/watery eyes, those are signs of intoxication, correct? A. Could be. Q. Based on your training and experience you’re &emsp; told that odor of alcohol and bloodshot/watery eyes, things along those lines are indications that someone could possibly be impaired by alcohol and you’re instructed to look for that? A. It’s slight alcohol. And, you know, it’s really hard to see bloodshot eyes in the dark. Q. If you see someone that you’ve pulled over with bloodshot/watery eyes and other signs of intoxication and you ask them to get out of the car to do further testing and they refuse, you have the right as an officer to get a warrant? A. Yes. Q. In fact, you have a duty as an officer to get a warrant? A. Not everyone does. Q. In this case he told you he would, though? A. Yes. After I agreed to do the test. MR. MARCUM: May I approach, Your Honor? THE COURT: Yes. Q (By Mr. Marcum) Let’s talk about these shoes. Whose shoes are these? A. Those are my shoes. Q. So they belonged to you at the time? A. Yes. Q. So these were the shoes that you chose to wear &emsp; that night? A. Yes. Q. And these were the shoes that you wore out that night when you’re playing — What was it that you were playing? A. An arcade game. Golden Tee. Q. Okay. So you’re out with your friends all night in these shoes that are yours, that you chose to wear, and you wear these all night, correct? A. Yes. Q. When the officer initially asked you if you had anything to drink you said no. A. Correct. Q. In your experience as an officer, was it unusual for somebody who’d been drinking to tell you that they hadn’t? A. It’s a normal response. Q. Happens all the time, doesn’t it? A. Yes. Q. In fact, it’s not unusual for someone that you arrested for DWI to have a completely different story than you as the arresting officer did? A. I guess. Q. You ever testified at a DWI trial? A. Maybe once. &emsp; Q. And was that your arrest? A. It was during FTO training. So it was both of our arrest. Q. In that case do you remember if you demonstrated the field sobriety tests on scene? A. I believe — It was a while ago. I don’t remember. It was back in 2008. Q. So that could have been one of the hundreds of occasions that you did the walk and turn and one-leg stand test before? A. It could have been. Q. Do you have training in the horizontal gaze nystagmus test? A. Yes. Q. And based on your training and experience, you were told that that’s a reliable indication of intoxication, were you not? A. I was. Along with the battery of the other two field sobriety tests, the walk and turn and the one-leg stand? A. Yes. Q. And, in fact, you’ve arrested people based on that battery of field sobriety tests? A. Based on all three and done correctly. Q. So as a hypothetical, if you had someone who &emsp; had an odor of alcohol and admitted that they were drinking after they initially denied drinking, they showed six clues on the horizontal gaze nystagmus, two on the walk and turn and four on the one-leg stand, you would arrest that person as a police officer, would you not? A. If the procedure was followed correctly, I would have. Q. And if you arrested that person for driving while intoxicated, they consented to a breath test and the breath test was .18, that wouldn’t have surprised you as an officer, would it? A. Depends what clues I saw and how distinct the nystagmus was. If the clues didn’t match up and I saw high results like that, I’d probably get blood and see if they match. Q. Probably get blood. Did you ask for a blood test on this date? A. I wasn’t asked for blood. I was asked for breath. Q. Did you at any time indicate that you would prefer a blood test? A. I was never asked. I wanted my results immediately, and I know blood comes back in a week, two weeks and breath is right then and there. &emsp; Q. So if you had someone who exhibited those clues on the field sobriety tests, a .18 is not entirely inconsistent with what you would have seen at the scene that day, correct? A. Are you comparing what I see at my scene? Q. No. I’m asking you as a former DWI enforcement officer. A. Uh-huh. Q. A .18 is not totally inconsistent with 6,2,4 on the field sobriety tests, is it? A. Oh, you’d see a lot more clues than that. You’d see all six on HGN. You’d see — There’s nine — eight or nine on the walk and turn and four on the one-leg stand. Q. But people that you arrest where you would expect those clues, they don’t practice field sobriety tests for a living, do they? A. I don’t know if they know ’em or not. I don’t know if they practice ’em. I don’t know if they know our procedures and do ’em. Q. Have you ever spoken with a person who admitted that they practiced field sobriety tests for giggles? A. Fort Worth hosts an intox — or not intox, but an alcohol training class and people are invited to do that course, and they get up to a certain BAC and they &emsp; do the test. Q. That’s a tremendously small sample of the overall community. Wouldn’t that be fair to say? A. Well, we have one every — every year, every academy class. Q. There are three and a half million people in Tarrant County. A. Three and a half million? Q. I think that’s right. I may be wrong. There’s a lot of people in the Dallas/Fort Worth area, correct? Several million. So the people — A. Are you just talking Fort Worth? Q. So the people that show up for wet labs, that’s a tremendously small sample size, correct? A. I don’t understand. Q. Say 15 people show up for a wet lab. A. Okay. An alcohol training course? Q. Sure. That’s a substantially smaller amount than seven million people that live in the Dallas/Fort Worth area. So it’d be fair to say that the average person doesn’t practice field sobriety tests? A. I don’t know what they do. Q. You practice field sobriety tests for a living. In fact, you did that for several years as a DWI officer &emsp; and arrested people based on that, correct? A. I demonstrated. I didn’t do the whole test out there. The most I would do is a demonstration. Three steps, hold your foot up for a little bit. Just a demonstration. Never the whole thing out there on the scene. Q. So you’re telling me that as a trained police officer, if you would have extrapolated the one-leg stand from a few seconds to 30 seconds, you would have looked just like that at any time? A. No. There are two different circumstances. I had different shoes on, I’m not freezing. Q. It took you about seven seconds to start to stumble on that one-leg stand. Is that fair? A. Yes. Q. So as someone who practices that for a living, or did, is that representative of your ability on the one-leg stand test? A. Under those circumstances, it being cold — Every time I put my foot down I kept count. If I didn’t have mental capability — I knew every time that I put my foot down what number I stopped at. Q. On the scene, as a DWI officer, how many people blame their shoes? A. I have always asked, if they have heels on — &emsp; even in the manual says be aware of the shoes they’re wearing. So you wanna take that into consideration. If they have heels on, you want ’em to take ’em off. There’s some people that say, hey, I balance better in heels. I always bring that question up if they can do the test. Q. My question was how many people blame their shoes. Is that something that you encounter quite a bit on the road, that people would blame their shoes for their performance? A. The DWIs that I’ve had don’t even get as far as the one-leg stand. Q. Let’s talk about where were you. And we’ve got a whole little binder of photos. And I actually see your truck in several of these photos. So you participated? A. No. Q. Is that incorrect? A. That’s incorrect. Q. Okay. Well, I do see a black truck. So did you assist in getting these photos in any way? A. No. Q. Okay. Have you been back to that scene since then, or around there? &emsp; A. I had to go that way to Amazon before when I was leaving Dallas. It was quicker that way and take 170 across to Haslet. I’ve been there once. Q. So you’re familiar geographically as to where that location is from your home? A. Not really. Q. Okay. So if I told you that that was approximately 37.7 miles or 49 minutes away from your home, would you have any reason to disagree with that? A. Probably about 30, 40 minutes. Q. So on that date you were stopped approximately 49 minutes, 37 miles away from home, traveling the opposite direction, away from 35, that you would take to get home? A. There’s a couple options I could take to get home. I could have taken — gone back down to 190 or I could have taken — turned around, taken 121 to 183 or, you know, 190 all the way down to 20. Or I could have kept on going, cut across 170 and taken 35 south. Q. So it sounds like your pretty familiar with this area. A. I know how to look at a map. Q. Okay. But yet you ended up from Richardson, which is northeast of here, going home southwest of here, and you ended up 37 miles away from your intended &emsp; target, your own home? A. Not from 114 and the 121 construction by the airport. It’s not that long from where I got pulled over. Q. So, again, you seem to be geographically in tune to where you’re supposed to be going and yet you were a grave distance away from it when you were stopped. Is that fair? A. I wasn’t more than 30 minutes from where the construction was. Q. So let me sum up what you’re saying. You’re saying that what Officer Rodriguez saw, an officer that you have no bad blood with, you’d never met before, correct? A. Correct. Q. So everything that he said he saw on the road he didn’t actually see? A. I believe there’s stuff that he is mistaken, that he might have saw distractions in his car. Q. And then this 12 year veteran of the Keller police force improperly did the HGN, correct? A. I believe at that time, ten years — I don’t know if it really matters. I don’t know how many DWIs he’s actually done. Q. He said several hundred. You were right here &emsp; when he said that. A. Within ten years. Q. Okay. And then your shoes were the problem on the instruction part of the walk and turn? A. Yes. Q. A task that you had demonstrated hundreds of times? A. Not only my shoes. There were other factors also. Q. And then the back injury, which you had had since you were 21, was the problem on the one-leg stand task, a task, again, that you had demonstrated hundreds of times. Right? A. Yes. Q. And then you go take a breath test — of which you’re an intoxilyzer operator. So you’ve been trained on the reliability of that test. — and it comes out to be a 18, right? A. Yes. Q. That’s just an alarming stretch of bad luck. A. It is. Q. All stemming from somebody who was pulled over and denied drinking? A. Correct. MR. MARCUM: I pass the witness, Judge. &emsp; THE COURT: Ms. Keene. REDIRECT EXAMINATION BY MS. KEENE: Q. What’s the difference between demonstrating a field sobriety test as a police officer and doing a field sobriety test as a suspect? A. It’s a lot harder as a suspect to do it. Q. When you’re demonstrating it, do you do it for the length of the entire field sobriety testing? How long does the demonstration last? You said it was three feet versus — A. A minute or two. Q. And how long — Whenever a suspect is supposed to do a field sobriety test, do they do the same amount that the demonstration is or do they do more? A. They do more. Q. And that — that — Jurors can see that even on the tape with Officer Rodriguez, correct? A. Yes. Q. He didn’t hold his leg up in his one-leg stand for ten seconds, eleven seconds, correct? A. Correct. Q. In a demonstration what do you normally put your foot up for? A. To demonstrate how to put your foot up and how &emsp; to point your toe and keep your leg straight. Q. But you don’t do it for the full amount of the field sobriety test? A. No, you don’t. Q. In fact, you do it for a very short snippet of it? A. Yes. Q. And whenever you are demonstrating field sobriety tests, as a police officer you’re dressed for the warmth, aren’t you? A. Yes. Q. At least you were. Whenever you got out of your car to go talk to somebody in the wintertime, you were dressed knowing you were gonna be getting out of your car in the wintertime to go talk to people, correct? A. Yes. You have extra clothes on, body amour. So you can be pretty warm. Q. And then you also have on the boots that you talked about that come up beyond your ankle. Is that correct? A. That’s correct. Q. And you’re not terrified of losing your job? A. Correct. Q. There’s a big difference when it’s cold and &emsp; you’re not dressed appropriately, isn’t it? A. Yes. Q. There’s a big difference when you don’t have on the big boots, you got on slip-on shoes, correct? A. Yes. Q. There’s a big difference when it’s freezing outside, correct? A. Yes. Q. And you’d been left out there for ten, 15, 20 minutes and you’re literally shaking, correct? A. That’s correct. Q. When your bones are shaking, when your insides are shaking, does that help you, Nick Ramirez, balance? A. No, it doesn’t. Q. Okay. On that night were you doing everything you knew to do to make this officer happy? A. Yes. Q. You were deferring to his authority? A. Yes. Q. And you were not intoxicated? A. No, I was not. Q. A .19, in your experience that type of person would certainly be showing vertical gaze nystagmus in their eyes, wouldn’t they? 25 A. Yes. &emsp; Q. Two and a half times the legal limit is a high dosage of alcohol? A. Yes, it’s very high. Q. And so when the officer said he did vertical nystagmus, went up and down, he says there’s none, that right there is evidence that the breath test — MR. MARCUM: Counsel’s leading and testifying, Your Honor. THE COURT: Sustained. Q (By Ms. Keene) Is that something that you think the jurors could consider, his testimony about the vertical nystagmus? A. Yes. It’s odd that he didn’t see that with that high of a BAC. Q. Right. So if you’re — If you’re a .19 BAC, it would be very odd he would not have seen vertical nystagmus on you? A. Correct. Q. And you remember everything about this night? A. Yes, I remember everything. MS. KEENE: I’ll pass the witness. MR. MARCUM: Just briefly, Judge. FURTHER RECROSS-EXAMINATION BY MR. MARCUM: Q. When you did these tasks as a Fort Worth police &emsp; officer, you were wearing more than you were wearing this night, correct? A. Yes. Q. In fact, you were wearing probably a cavilar vest, some sort of body amour? A. Yes. Q. And you were wearing a belt? A. Yes. Q. And that belt had a service weapon and a flashlight. Did you carry a taser? A. Yes. Q. Did you carry a — we called it an asp –a wand? A. Yes. Q. That’s a lot of stuff, isn’t it? A. Yes. Q. So as a police officer you could do that hundreds of times during investigations, but you can’t do it this one night when you happened to be investigated yourself for DWI. Is that what you’re telling me? A. I have never done it in freezing weather before without — without warm clothes on. Q. Let’s break this down a little bit more simply. (State’s Exhibit No. 2 playing) &emsp; Q. (By Mr. Marcum) That’s you, correct? A. Yes. (State’s Exhibit No. 2 stopped) Q (By Mr. Marcum) As a trained DWI enforcement officer with DWI arrests, whose done those tests hundreds of times, tell me again that that’s your normal physical faculties. A. Based on all circumstances, that is my normal faculties, mental faculties. MR. MARCUM: Pass the witness, Judge. MS. KEENE: I don’t have anymore questions, Judge. THE COURT: You may step down. MS. KEENE: We would rest. MR. MARCUM: No rebuttal, Your Honor. Close. MS. KEENE: We close. THE COURT: All right. Ladies and gentlemen, you’ve heard all the evidence in the case. We’re going to take a break right now to prepare the Court’s charge. We’ll do a little longer break than normal. So it’ll be about 15 minutes which means you can go down and get something to drink. Jordan, if you would, give them some instructions back here. &emsp; And then when you come back, I’ll read to you the Court’s charge and you can hear closing arguments and you’ll deliberate on the verdict. If you’ll follow the officer. MR. MARCUM: The State’s position is the charge as written doesn’t address the fact that the DWI is the lesser included offense of the DWI .15 or above and it creates no avenue for the jury to make a finding as to loss of physical or mental faculties without affirmatively finding the .15. THE COURT: That’s true. And it’s all based upon case law and what the research has developed for the cases. That is very true. If they don’t find it’s .15 or greater, then there’s no offense. And I just questioned Nelda about that. She said that’s what — the charge is .15 or greater and if it’s not, then it’s not. Now, if you wanna call her real quick, but that’s — This is what she has given all the judges. MR. MARCUM: The charge itself right here is contradictory in that the third paragraph it says “Intoxication means not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body, or having an alcohol concentration of .08 or more.” And then it goes on to the second page, “Now, if you find from the evidence…” &emsp; THE COURT: I understand. I understand. And your point is well taken. It doesn’t address lesser included. Why don’t you go back and call. MR. REID: Okay. (Short pause) (Open court) THE COURT: Go ahead. MR. MARCUM: Your Honor, in terms of the charge itself the defense has affirmatively questioned the breath results, as to the reliability of it. The State believes that they’ve proved up, both with officer testimony and with the video itself, evidence as to loss of physical faculties. We have a lot of testimony about that; therefore, the State believes that we should be entitled to a lesser included charge of just the standard DWI so that the jury can make a finding as to the loss of physical faculties or loss of mental faculties. THE COURT: All right. Off the record. (Off the record) (Open court) MS. KEENE: Judge, we don’t want a lesser included offense. I think it’s as charged. That’s what they charged; I think that’s what they’ve got to prove. And for them to now come in and say, well, they wanna &emsp; waive the breath alcohol, well, then I wanna say start a new trial and take that breath test out of here and get that skunk out of the jury box. If you’ve proven a breath test, then live with it. Say that – convince the jury you did. Because if we’re just gonna go with no breath test, no .15, then I think we could just start over and not have that admitted into evidence. I think that’s how they charged it, period. THE COURT: Well, that’s certainly how it’s charged, although lesser includes are not usually in the information. They’re more or less a fiction to reduce something like to obstruction of a highway and so forth. MR. MARCUM: Your Honor, looking at the charge itself, it’s “…then and there operate a motor vehicle in a public place while said defendant was intoxicated.” And “intoxicated” has its own particular definition when it comes to the charge of DWI. Then it’s further presented that the alcohol concentration was .15 or more at the time the analysis was performed. THE COURT: Yeah. I really think the first paragraph should just — I mean, I think the first paragraph, first few paragraphs, lean toward the State’s inclusion of the lesser included. However, seems to me the first paragraph ought to read “…with a blood or &emsp; breath test of .15 or greater.” It should read what it’s charged with and not give them any others. Y’all kind of voir dired on all the others, too, though. MR. MARCUM: We did, Judge. THE COURT: Well, in an abundance of caution, I think I’m gonna do the lesser included. I really don’t know which way to go on that. I usually add to rather than. Do you have the particular language you want or where you want it? And if you don’t find it’s .15 or greater, then if you find it’s a DWI. (Courtroom break) (Open court) THE COURT: All right. Spend a few minutes looking at it. (Short pause) (Open court) THE COURT: Okay. State have any objections to the charge? Hello. Does the State have any objections to the charge? MR. MARCUM: Your Honor, the State renews its objection that it should be dealt with as a special issue; however, this is much better than the previous charge. THE COURT: Well, do you have an &emsp; objection to this charge, without — I mean, we’re not gonna do the special issue. You asked for this. So I’m asking you if you have objections. MR. MARCUM: State will go forward with this charge, Your Honor. THE COURT: Defense? MS. KEENE: None. THE COURT: All right. Let’s go. (JURY PRESENT) THE COURT: You may be seated. All right. Ladies and gentlemen, I’m gonna read to you the Court’s charge and then we’re going to have that followed by the closing arguments. State of Texas versus Nicolas Ramirez. “Members of the jury, the defendant, Nicolas Ramirez, stands charged by information with the offense of being intoxicated while operating a motor vehicle in a public place in Tarrant County, Texas, on or about the 2nd day of January 2013. “To this charge the defendant has entered a plea of not guilty. “Our law provides that a person commits an offense if that person is intoxicated while operating a motor vehicle in a public place. “Intoxicated means not having the normal &emsp; use of mental or physical faculties by reason of the introduction of alcohol into the body or having an alcohol concentration of point 0.08 or more. “Alcohol concentration means the number of grams of alcohol per 210 liters of breath. “Public place means any place to which the public, or a substantial group of the public, has access and includes, but is not limited to, streets, highways and common areas of schools, hospitals, apartment houses, office buildings, transport facilities and shops. “Now, if you find from the evidence beyond a reasonable doubt that on or about the 2nd day of January 2013, in Tarrant County, Texas, the defendant, Nicolas Ramirez, did then and there operate a motor vehicle in a public place while the said defendant was intoxicated and that the analysis of the specimen of the defendant’s breath showed an alcohol concentration level of 0.15 or greater at the time the analysis was performed, then you will find the defendant guilty as charged. “Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of driving while intoxicated and having an &emsp; alcohol concentration level of .15 or greater at the time the analysis was performed and next consider whether the defendant is guilty of a lesser included offense of driving while intoxicated. “Now, if you find from the evidence beyond a reasonable doubt that on or about the 2nd dayof January 2013, in Tarrant County, Texas, the defendant, Nicolas Ramirez, did then and there operate a motor vehicle in a public place while the said defendant was intoxicated, then you’ll find the defendant guilty as charged. “Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of driving while intoxicated and say by your verdict not guilty. “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. “The fact that a person’s been arrested,confined or indicted for or otherwise charged with the offense gives rise to no inference of guilt at this trial. “The law does not require the defendant to prove his innocence or produce any evidence at all. &emsp; The presumption of innocence alone is sufficient to acquit the defendant unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case. “The prosecution has the burden of proving the defendant guilty, and it must do so by proving each and every element of the offense charged beyond a reasonable doubt. If it fails to do so, you must acquit the defendant. It is not required that the prosecution prove guilt beyond all possible doubt. It is required the prosecution’s proof excludes all reasonable doubt concerning the defendant’s guilt. “In the event that you have a reasonable doubt as to the defendant’s guilt, after considering all the evidence before you and these instructions, you will acquit the defendant and say by your verdict not guilty. “The charging instrument in this case is called the information. It is not evidence whatsoever of the guilt of the defendant. It is a mere pleading necessary in order to bring this case into court for trial, and you will consider it for no purpose at all. “Your verdict must be by a unanimous vote of all members of the jury. In deliberating on thiscase you shall consider these written instructions as a &emsp; whole, and you must not refer to or discuss any matters not in evidence before you. “After you retire to the jury room, you should select one of your number as the foreperson. It is his or her duty to preside at your deliberations, to vote with you, and when you have unanimously agreed upon a verdict to certify to your verdict by using the attached verdict form and signing the same as the foreperson. “You are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given their testimony, but you are bound to receive the law from the court, which is herein given and be governed thereby. “If the jury wishes to communicate with the Court pertaining to this case, such communication must be in writing and signed by the foreperson and handed to the bailiff.” And I will sign this as your presiding judge. Now, the last page is the verdict form. First line you can see, you can read that, and then this line is for the first charging paragraph that I wrote you of the DWI being .15 and the other is just straight DWI. I think you’ll understand that. You may have to &emsp; read it over a few times. It’s a little complicated. But once you figure out what the paragraphs mean, then it’ll all come to you. Okay? Mr. Reid. MR. REID: May it please the Court. THE COURT: Yes, sir. MR. REID: Counsel. Ladies and gentlemen, good late afternoon. I know there was a lot of arguing today, but we can all agree we wanna go home. Right? I’m gonna do what I did at the start of this trial. I’m just gonna talk to you about the facts. I kind of wanna sum everything up for you. I’m gonna let Josh talk to you about the implications of those facts. The testimony we’ve heard today was first from the arresting officer. He talked about the driving behavior that he noticed of the defendant that night at12:56 a.m. He told you that the defendant was traveling in the wrong direction. He told you that when he approached the vehicle there was an odor of alcohol and bloodshot eyes. The defendant denied consuming alcohol. He sat on the stand today and told you that he did lie to the officer and he lied because it was the easy thing to do. &emsp; He was directly asked by the officer, while he’s sitting in that driver’s seat, if he was intoxicated. He did not tell that officer an answer for 30 seconds. He sat there and stared at him. The officer told him what was gonna happen. You know, if don’t cooperate — He’s a DWI officer. He knows how it’s gonna end. It’s gonna end in a blood warrant. And they’re gonna draw his blood and they’re gonna know what he already knows. That he’s intoxicated. So what does he do? He cooperates. And through that cooperation we see that he’s lost the normal use of his mental and physical faculties. Josh is gonna play some of the video for you. It corroborates what the tests ultimately told us in this case. That he was over twice the legal limit. The officer talked about HGN test, that involuntary jerking of the eye. That’s not something that cold has anything to do with, it’s not something that nerves has anything to do with. It’s something that alcohol causes in a person. That’s what we saw in the defendant. You saw that walk and turn. I have nothing to hide. I thought he looked pretty good on that walk and turn, but when he was asked to stand on one leg, without a doubt those are signs of &emsp; intoxication. He was arrested. The next thing we as State do was we brought in the person who operates the intoxilyzer and the technical supervisor. They talked about protocols, safeguards, scientific reliability and the results of those tests were 0.18 alcohol concentration. Those are the facts of this case. And that’s what I wanted to talk to you about. The last thing I wanna show you is what the Judge just talked to you about. This verdict form right here. Okay? I mean, this is the scary part of what you have to do. You have to ultimately make a decision. But I want you to look at this form, okay, not as — not as a statement about whether the defendant is a good or bad person. I want you to look at it as a message. It’s a message to the police officer who, for the safety of other drivers and the safety of — for the safety of the defendant himself, made a decision to arrest. It’s a message to that intoxilyzer operator who did what he was supposed to do. He followed his protocols. It’s a message to that forensic scientist who came and testified about his safeguards and his trust in what he does. It’s a message to Tarrant County that it’s not okay to drive on your roads at twice the legal limit. &emsp; The defendant made a decision that night. And this is your chance to send him a message that he made a mistake. Doesn’t mean he’s a bad person. Means you’re gonna hold him responsible for it. Thank you. THE COURT: Ms. Keene. MS. KEENE: Thank you, Judge. Ladies and gentlemen of the jury, we talked about what it was like to live in a police state on voir dire, what it’s like to live where the police arrest you and you’re scared and you don’t get an opportunity because you’re presumed guilty. And that’s not what we have here in the United States, what we have in Texas. What we have is a presumption of innocence. Nick is presumed innocent. A police officer who was watching South Park on the side of the road, that’s the type of police officer that made these decisions. A police officer’s watching South Park on the side of the road. This police officer then goes and testifies at the administrative hearing to revoke his license. He doesn’t tell that Judge he’s watching South Park on the side of the road. He says he’s listening to the radio. This is a police officer who will change his testimony to fit whatever questions are asked. Is that the type of police officer that we wanna send a message to? That &emsp; this is a police state and whatever you say goes? Or are we the type of people that says, no, we scrutinize our government. We’re the type of people that say all people, even police officers, have a right to the presumption of innocence. Even police officers. So let’s look at what the government is saying. And think about it logically as good old fashion human beings. They are saying that Nick was two and a half times the legal limit. Okay? Two and halftimes the legal limit. Not just barely. They’re saying he blew a .19 and a .18. Okay? The police officer that likes to watch South Park on the side of the road said that Nick was at the exact same level of intoxication – (State’s Exhibit No. 2 playing) MS. KEENE: — when he walked in this police station, and it’s warm, as he was on the side of the road. Look at that. Boy, that’s just a drunk, isn’t it? Look at that. .19. Two and a half times the legal limit. This is the type of police officer that would look at those tapes that we talked about with him — (State’s Exhibit No. 2 stopped) MS. KEENE: — and say, now, there was a — there was a sway. There was a sway. There was an ever so slight sway. Two and a half times the legal &emsp; limit is what they’re saying this guy is when he walks from there stone cold sober into the breathalyzer and takes a breath. Do we live in a society where we say machines decide guilt? No. We live in a society where we say jurors, watch this guy, you know what people look like when they’re intoxicated, you know that they sound like when they’re intoxicated. This police officer and the government wants you to believe that Nick Ramirez on New Years Eve was out there looking for DWI people, he was out there arresting people, he was seeing horrendous accidents and the very next day he went and had 11 or 12 drinks, got dosed up and got in his car and drove. Please. This is supposed to be Nick at 11 or 12 drinks. Please. This is supposed to be a guy — when you saw him — I put him on the witness stand so you could look in his own eyes, see his temperament. You saw his temperament when he was out on the street. You saw his temperament when he’s confronted with the police officer. “Yes, sir.” He’s the temperament of the cop that you want if you’re getting pulled over. He’s the temperament of the cop that you want if your loved one needs help at home. Not some watching South Park, let me get in here and lie and let me — let me make so many mistakes and get on the witness stand and say I made a mistake, I made a &emsp; mistake. Oh, I screwed that up. Oh, I screwed that up, but go ahead and convict that man. He’s already lost his job. Label him a drunk driver. Maybe to you that’s not a big deal, but to a person who invested his life as a law enforcement officer, a person who said I wanna be a DWI cop, this is huge. His life is forever changed regardless of your verdict, but to now call him a liar as opposed to the guy who watches South Park and doesn’t tell people? As a guy who says 25 seconds is too much to pull over. You’re supposed to slam on your brakes. A guy who actually stood on that witness stand and told you — we watched it together — oh, that’s a sign he’s intoxicated. I’m scared if you drive through Keller. My people are in Southlake. I don’t want that man pulling me over. He gets that little pen out and does this. He doesn’t even know what the procedures are. He doesn’t even know what the words are. He says “at” 45 degrees. You’ve got horizontal gaze nystagmus at 45 degrees. You do. You do. You do. You do. You do.That’s what he put on his report is a sign of intoxication, “at 45 degrees,” when the standard is prior to. He doesn’t even know how to do the test that he so perfectly administers. But he did tell you that, hey, weather — weather’s a big deal. Of course, it is. &emsp; You start shaking in your bones at 31 degrees and think you can stand there. Vooom, vooom. Just try doing it in the security of your own home. Now try doing it when it’s 31 degrees, you’ve been out there 15 minutes, and there’s cars whizzing by and your entire livelihood depends on it. You’re gonna be fired if you don’t do this. And when he misses it, he goes “ohhh.” Was that a wiped out drunk? Or is that a guy that’s trying, man? Is that a guy that’s trying? I’m giving you all that I can. And so he takes off his shoes and he hits it perfect, but because he took off his shoes he got points knocked off. He got points knock off for saying the shoes don’t work, and then he hits it perfectly. But failed the walk and turn. But when the prosecutor stood up here, he said, he did really good. Well, he failed it according to the police officer. See, these are the same people that started with the charge, that were so proud of .19 that now you’re gonna notice in that Court charge they started reducing their stuff. Okay. Forget it. Forget about that .19. We’re gonna go ahead and put another charge in there because it is pretty hokey. Why they adding new charges now? It’s either he’s a drunk driver or he’s not. You can watch him. You guys are as smart &emsp; as any other human beings. This police officer got on the witness stand and was so sure that he told him two times not to move his head. Let’s all just watch it together. It’s right there. That’s where I told him two times. No. I think that’s actually where you said “It’s cold out here, isn’t it.” “Oh, yeah, yeah. That’s what I could have said.” Proof beyond a reasonable doubt. It’s not that Nick Ramirez is probably guilty. That’s not what the standard it. Well, I think maybe he is guilty. That’s not the standard. He’s probably guilty? That’s not the standard. They have to exclude all doubt. And that video right there, that was up there, that video of him, when it’s warm — And did you notice where he was? He was in a place where they do field sobriety testing. In a warm environment. Keller can do that. They’ve gotta room for it. But what do they choose? Not to do it in that room. Keller can videotape. And apparently they did him blowing. Keller can videotape observing him to see if he belched or if anything happened that would have caused that — that — that machine to register. They didn’t bring you that. This is their burden to prove beyond a reasonable doubt that Nick Ramirez was driving while intoxicated. It’s not brain &emsp; science. You gotta believe — end it with this. One more time. You’ve got to believe that this police officer, this ex-police officer, left a DWI accident on New Years Eve weekend and went party down, man, and then chose to drove — drive all the way from the other side of Dallas, all the way home tonight, whoa, and then somehow looks beautiful. Doesn’t sound drunk and looks beautiful on the video. You gotta believe that. Please. There is so much reasonable doubt in this case. Ladies and gentlemen, the only appropriate verdict is not guilty. THE COURT: Mr. Marcum. MR. MARCUM: Thank you, Your Honor. HE COURT: You have nine minutes. MR. MARCUM: Thank you, Judge. This was a polite and courteous trial until just a minute ago. Because the fact is people who don’t have truth on their side are the ones that start calling people liars. That officer testified for about two and a half hours. Was he ever proven a liar? No. He made a mistake, a couple of mistakes on a report that he wrote, and he admitted to ’em. A couple of mistakes on &emsp; a report. Who’s the liar? That man started off with a lie, a boldface lie and then stuck to it. No, I’ve had nothing to drink. Got proved wrong about that on the scene. And he dared to take the stand today and admit just how much of a lie it was. But that’s what happens. Because he’s had two and a half years to concoct a story about what happened that night. And, boy, he came up with one every step of the way. No, the officer didn’t see this bad driving that he didn’t dispute on the scene that night Officers didn’t see it. This officer has no reason to lie about what he saw that night. What reason does that officer have to lie? Absolutely none. This officer messed up the field sobriety tests. Well, you saw two of those for yourselves. And there were a lot of things that you-all probably expected when you came into this trial, but one big thing that you probably didn’t, the defendant, the person charged, is a professional at doing field sobriety tests. A professional. He’s not you or me out on the side of the road. He is a person trained in field sobriety tests. He’s a person who’s demonstrated them hundreds of times and still that’s how he looked. Oh, well, why did he look that way? Because of his &emsp; shoes? The shoes that he chose to wear, the shoes that he wore that entire night, because of his back surgery, his back surgery that he had when he was 21 years old, before he became a police officer and before he became a professional witness about field sobriety tests? And then the breath. Now, Ms. Keene made a big deal about the State changing the charge. State hasn’t changed a darn thing. State has not changed a darn thing. The entire voir dire, the entire jury selection, we talked to you about loss of mental faculties, loss of physical faculties being DWI. The fact that he blew above a .15, that’s not my fault That doesn’t make the State the bad guy. He’s the one charged with the enhanced offense. And let’s talk about that breath test.He’s also an intoxilyzer operator. He had the same job that Joe Salvato did. He’s trained in that. He’s administered the breath test, and now he’s gonna come in here and tell you that nothing fits. Nothing fits. (State’s Exhibit No. 2 playing) MR. MARCUM: Well, here’s a trained expert in field sobriety tests. Not being able to geti n a starting position for the walk and turn. Here’s a trained expert in field sobriety tests. Not able to hold balance for more than a few seconds. And if this &emsp; isn’t a drunk stumble right there, I don’t know what is. But he keeps trying and he keeps looking flat out terrible at it. (State’s Exhibit No. 2 stopped) MR. MARCUM: But this man, who’s trained in field sobriety tests and who’s demonstrated this and made arrests of people based on these tests, is gonna sit there and tell you that’s his normal. Well, we know it’s not his normal. Why do we know that? Because he gave a breath test. Ladies and gentlemen, not even close. Not even close. They made a big deal about vertical nystagmus and that being present in high levels of alcohol. And the officer testified that it depends on how frequently somebody drinks to that level. So apparently this man’s a seasoned drinker. But still a .18 and a .19 are a .18 and a .19. That’s a fact. We showed you loss of mental faculties. We showed you where he was when he was stopped. He’s going from Richardson to deep south Fort Worth and he ends up 37 miles away, getting stopped going towards Southlake. That’s not even close. And he stood up here and he rattled off streets and rattled off addresses and this route and that route here when he’s sober. But that night when he’s .18, .19 he ended up 37 miles away &emsp; from his house. We showed you lack of physical faculties I don’t wanna beat this one into the ground, but that’s not what a trained expert in field sobriety tests looks like when they’re sober. THE COURT: You have two minutes. MR. MARCUM: But he came in here and he gave you an excuse for everything. An excuse that’s two and a half years in the making. This officer didn’t see what he saw on the driving, this officer was wrong about the field sobriety tests. The breath test — I’m not even sure what was wrong with that. He didn’t tell us. At no point when he testified did he tell us what was wrong with it. Did he say he burped? Did he say he threw up in his mouth? Did he say anything? No. He gave you no reason whatsoever to disregard that breath test of .18 and .19. No reason whatsoever. Mark Fondren testified as to the safeguards of the instrument, the underlying science of the instrument. He’s testified hundreds if not thousands of times. He gave you no reason to have any question about what that test showed. So the question is — and Ms. Keene actually misstated that. She said I have to remove all doubt. Not a fact. I have to remove reasonable doubt. &emsp; I have to show you beyond a reasonable doubt that he was driving while intoxicated. And I showed you that he was drinking, he admitted to that, loss of mental faculties, loss of physical faculties, and I showed you that he was over two times the legal limit, period. So the question is, after he testified, the man who started this all off with a lie on the video, no, I haven’t drank and stuck with that, you have to listen to his testimony and ask yourself, ladies and gentlemen, how many mountains are you willing to move to find him not guilty of DWI? That’s the ultimate question. How many mountains are you willing to move to find him not guilty? The State’s proved its case beyond a reasonable doubt. I ask you to be reasonable. You brought logic and reason and life experience in this courtroom. Think about the case, think about the testimony. Ask yourself what makes sense. And if you reasonable people think he did it, then he did beyond a reasonable doubt. Find him guilty. Thank you. THE COURT: Thank you. All right. Ladies and gentlemen, I’m excusing you now. We’ll stand in recess until you reach a verdict. Elect your foreperson immediately and begin your deliberations. &emsp; (Jury deliberates at 5:47 p.m.) THE COURT: Note number one from the jurors. “What is the main difference between the two guilty verdicts.” My response is “The difference between the two paragraphs in the charge is as follows: The first charge of driving while intoxicated requires that you find the defendant had a breath test of .15 or greater. The second charge of driving while intoxicated requires that you still find the defendant guilty of driving while intoxicated based upon loss of mental and physical faculties.” MS. KEENE: Or the point .08, isn’t it? MR. MARCUM: Yeah, I think it is to make it a true lesser included. MS. KEENE: Yeah. Or you could put “in accordance with the definition of intoxication per the charge” or something. THE COURT: No, I don’t think so. MS. KEENE: Then you’d have to rewrite all that. Or you could just track the language of intoxication. (Short pause) (Open court) THE COURT: “The second charge of DWI, driving while intoxicated, requires that you still find &emsp; the defendant guilty of driving while intoxicated based upon loss of mental and physical — mental or physical or .08.” (Verdict at 6:34 p.m.) THE COURT: Bring them in. (JURY PRESENT) THE COURT: All right. You may be seated. Mr. Oakes, are you the jury foreman? FOREPERSON: Yes, ma’am. THE COURT: Is this a unanimous verdict? FOREPERSON: Yes, ma’am. THE COURT: Mr. Ramirez, if you’ll stand. Counsel. “We, the jury, find the defendant, Nicolas Ramirez, guilty of the offense of driving while intoxicated and having an alcohol concentration level of .15 or more at the time the analysis was performed.” Signed by the foreperson. You may be seated. All right. Ladies and gentlemen, I am going to release you now being on the jury. They’re closed downstairs? THE BAILIFF: Yes. THE COURT: And the last bus has left? &emsp; THE BAILIFF: No. THE COURT: When does the last bus leave? THE BAILIFF: Seven. THE COURT: At seven. Okay. We still have 25 minutes to get down there. We’ll get your name tags. And I guess they mail the checks? THE BAILIFF: Yes. THE COURT: Thank you very, very much. It’s been a long day. You’re released. (Trial on Merits Concluded) &emsp; STATE OF TEXAS | COUNTY OF TARRANT | I, Mary Ann Clifton, Official Court Reporter for County Criminal Court No. 7 of Tarrant County, Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence, and other proceedings requested in writing by counsel for the parties, to be included in this volume of the Reporter’s Record, in the above-styled and -numbered cause, all of which occurred in open court, or in chambers, and were reported by me. I further certify that this Reporter’s Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties. WITNESS MY OFFICIAL HAND this the November 29th, 2015. 19 /s/ Mary Ann Clifton ________________________________ 20 MARY’s ANN CLIFTON, CSR NO. 2385 Expiration Date: 12-31-15 21 Official Court Reporter County Criminal Court No. 7 22 Tarrant County, Texas 401 W. Belknap Street 23 Fort Worth, Texas 76196 (817) 884-2776

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