OPINION

No. 04-11-00053-CR

Peter H. EGGERT,

Appellant 

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 2, Bexar County, Texas

Trial Court No. 918014

Honorable H. Paul Canales, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Delivered and Filed: November 7, 2012

AFFIRMED AS MODIFIED 

A jury found appellant, Peter H. Eggert, guilty of driving while intoxicated. The trial 

court sentenced appellant to community supervision. We affirm the judgment as modified.

BACKGROUND

Officer Patrick Navarijo stopped appellant for speeding at approximately 2:00 a.m. on 

March 5, 2005. Appellant pulled over to the side of the road in a timely manner. After stopping, 

appellant immediately got out of his vehicle and approached the officer’s patrol car. According 
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to Officer Navarijo’s testimony, he found it unusual for a suspect to approach a patrol car and he 

also stated he believed appellant approached the patrol car in a very “agitated” fashion. Officer 

Navarijo testified he noticed appellant’s eyes were bloodshot, his face was a flushed red color, 

and he smelled of alcohol. Officer Navarijo testified that because of “[t]he odor of alcohol on his 

breath and his attitude,” he asked appellant if he had been drinking to which appellant replied, 

“no.” 

Shortly thereafter, appellant walked back to his car to get his insurance information. 

When appellant opened the door, Officer Navarijo testified that he noticed several empty bottles 

of what appeared to be alcohol in appellant’s vehicle. Officer Navarijo asked appellant to have a 

seat in his own vehicle and he then called for backup. Officer Navarijo testified he called for 

backup due to appellant’s attitude stating, “[h]e was argumentative, somewhat confrontational, 

had a lot of questions.” 

After the backup officer, Officer Knutson, arrived, Officer Navarijo returned to 

appellant’s vehicle. Officers Navarijo and Knutson both testified they noticed appellant was 

smoking a cigarette and that appellant’s tongue was green, which Officer Navarijo stated he 

believed was because of a mint or candy used to freshen his breath. Officer Navarijo wrote 

appellant a ticket for speeding and then asked him whether he wanted to complete any sobriety 

tests, which appellant refused. Officer Navarijo testified he asked appellant at least once more to 

complete sobriety tests and appellant continued to refuse. Officer Navarijo then placed appellant 

under arrest on suspicion of driving while intoxicated. At this point, appellant agreed to perform 

the sobriety tests, but Officer Navarijo told him it was too late. Officer Navarijo searched and 

inventoried appellant’s vehicle where he found approximately ten bottles of what appeared to be 

wine and beer. 
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The stop was recorded by video tape, complete with audio. During the stop, Officer 

Navarijo went back to his patrol vehicle to record his own statements about appellant’s condition 

and what he had observed. The tape also had audio of Officer Navarijo’s statements as he 

inventoried appellant’s car. At trial, the State introduced the video with audio and appellant 

objected, contending the narrative statements Officer Navarijo made in the tape were 

inadmissible hearsay. The trial court overruled his objection, admitting the entire video with 

audio.

DID THE TRIAL COURT ERR?

In his first issue, appellant asserts the trial court erred in admitting the audio portions of 

the tape that recorded Officer Navarijo’s statements about appellant’s condition and Officer 

Navarijo’s narrative about what he found in appellant’s vehicle because they were “spoken 

offense reports” that are inadmissible hearsay. The State concedes the first audio portion was 

improper, but contends the second audio portion was a properly admitted “present sense 

impression.” 

As a general rule, hearsay is inadmissible. See TEX. R. EVID. 801(d) (defining hearsay); 

802 (hearsay rule). One exception to the general rule is for “present sense impressions,” defined 

as “statement[s] describing or explaining an event or condition made while the declarant was 

perceiving the event or condition, or immediately thereafter.” TEX. R. EVID. 803(1). Present 

sense impressions are deemed more reliable and therefore admissible because they are “nonnarrative, off-hand comments made without any thought of potential litigation by a neutral and 

detached observer without any motive to fabricate, falsify, or otherwise exaggerate his 

observations.” Fischer v. State, 252 S.W.3d 375, 383 (Tex. Crim. App. 2008).
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The Fischer court explained how narrative, on-the-scene recordings of a police officer’s 

observations are not “present sense impressions:” 

[O]n-the-scene observations and narrations of a police officer conducting 

a roadside investigation into a suspected DWI offense are fraught with the thought 

of a future prosecution: the police officer is gathering evidence to use in deciding 

whether to arrest and charge someone with a crime. Calculation and criminal 

litigation shimmer in the air; the officer is gathering evidence, he is not making an 

off-hand, non-reflective observation about the world as it passes by. 

Id. at 384. In concluding the officer’s statements1 were inadmissible, the Fischer court stated, 

“[a]n officer may testify in the courtroom as to what he saw, did, heard, smelled, and felt at the 

scene, but he cannot substitute or augment his in-court testimony with an out-of-court oral 

narrative. This calculated narrative in an adversarial setting was a ‘speaking offense report.’” 

Id. at 376. 

Here, the first narrative from Officer Navarijo was made while he was inside his patrol 

car waiting for backup and was as follows:

This gentleman, he uh, his name is Peter Eggert, date of birth 06-29-45. 

He smells like alcohol. His eyes are bloodshot. His face is flushed. He was 

unaware of the speed limit out here, where it’s posted sixty. Uh, he’s already told 

me that he hasn’t had any alcohol to drink, but I smell the alcohol, and he 

furthermore does not want to do any sobriety tests. I’m gonna write him a ticket 

and wait for the other officer to arrive, and we’re gonna do . . . see if I can get him 

to do some sobriety tests, I’m gonna ask him for a third time. Mr. Eggert looks 

mighty nervous now that he’s smoking a cigarette.

We believe this is precisely the type of narrative the Fischer court considered to be a 

“speaking offense report” that is not admissible as an exception to the hearsay rule. The 

recorded factual observations made by Officer Navarijo while investigating appellant were not 

 1 In Fischer, Trooper Martinez dictated comments into his microphone about the defendant during a stop for DWI. 

Trooper Martinez verbally noted that he had seen a wine opener in appellant’s truck, he had noticed there was a 

strong odor of alcohol on appellant’s breath, and also noted that appellant had glassy, bloodshot eyes and “slurred 

speech.” Fischer, 252 S.W.3d at 377. Also, Trooper Martinez went back to his patrol car multiple times to record 

his observations after administering sobriety tests on appellant. After one sobriety test he dictated into his 

microphone, “[s]ubject has equal pupil size, equal tracking, has a lack of smooth pursuit in both eyes, and has 

distinct nystagmus at maximum deviation in both eyes. Subject also has onset of nystagmus prior to forty-five 

degrees in both eyes.” Id. 
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the non-reflective observations of a neutral observer that the present sense impression exception 

is designed to allow. Instead, Officer Navarijo’s comments were more analogous to a police 

report in that they were “on-the-scene observations and narrations of a police officer conducting 

a roadside investigation” made with the thought of future prosecution in mind. See id. at 384. 

We therefore conclude and the State concedes, the trial court erred in overruling appellant’s 

objection to this audio portion of the video. 

The second audio portion appellant argues should been excluded was Officer Navarijo’s 

commentary as he searched and inventoried appellant’s vehicle. After placing appellant under 

arrest and putting him in the back seat of his patrol car, Officer Navarijo turned his personal 

microphone off. However, once he started the search he turned his personal microphone back on 

for the purpose of recording his statements while he searched appellant’s vehicle. Officer 

Navarijo dictated:

I’m going to turn [the microphone] back on real quick. Here’s a uh white 

zinfandel bottle of wine, a bottle opener, a Paulaner premium beer, oh hold on, 

there’s one, two, three, let me go and put all the beers right here, there’s a bunch 

of them. He’s also got several pills here. I don’t know for what. So just to make 

sure there’s one, two, three, four, five, six, seven, eight, nine, ten, different bottles 

of alcohol, five of which are wine. I didn’t expect to find all this alcohol.

The State argues that this second narrative qualifies as an admissible present sense 

impression because his statements occurred while the search was ongoing. The State argues that 

in this portion of the tape Officer Navarijo was simply “describing the events as they happened” 

and, therefore, his statements “[are] not the same type of reflective narration as described by 

Fischer.” We disagree. 

Officer Navarijo’s narrative during his investigation of appellant’s car was not the type of 

off-hand comment by a detached observer that the present sense impression rule is designed to 

allow. See id. at 383. The Fischer court explains that, “the adversarial nature of [an] on-the-
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scene investigation of a potential crime is entirely at odds with the unreflective, instinctive 

comments of a ‘street-corner’ speaker who was not thinking about the legal consequences of his 

statements.” Id. at 385. These types of statements made during an investigation with the thought 

of future litigation are statements in a setting “that human experience and the law recognizes is 

brimming with the potential for exaggeration or misstatement.” Id. at 386. Regardless of 

whether the statements were made contemporaneously with what Officer Navarijo was 

observing, he was still conducting an investigation and making these statements for evidentiary 

use with an eye toward appellant’s future prosecution for DWI. See id. In fact, Officer Navarijo 

turned his personal microphone back on for the purpose of recording his narrative statements 

while he conducted the search. As Officer Navarijo pulled the bottles out of the vehicle, the 

comments he made about the type, brand, and number were comments made for the purpose of 

putting together evidence against appellant and, for that reason, were testimonial statements that 

cannot be considered the “non-narrative, off-hand comments” the present sense impression 

exception is designed to allow. See id. at 383. Therefore, we conclude the trial court erred in 

admitting this second portion of audio. 

HARM ANALYSIS

The erroneous admission of hearsay is nonconstitutional error. Johnson v. State, 967 

S.W.2d 410, 417 (Tex. Crim. App. 1998). Nonconstitutional errors require reversal if they affect 

a defendant’s substantial rights. TEX. R. APP. P. 44.2(b). The erroneous admission of evidence 

does not affect substantial rights if, after examining the record as a whole, we have “fair 

assurance that the error did not influence the jury, or had but a slight effect.” Motilla v. State, 78 

S.W.3d 352, 355 (Tex. Crim. App. 2002). In considering the likelihood that the error adversely 

affected the jury’s verdict, appellate courts should consider everything in the record, including 
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the evidence admitted, the nature of the evidence supporting the verdict, the character of the 

alleged error, and how it might be considered with other evidence in the case. Morales v. State, 

32 S.W.3d 862, 867 (Tex. Crim. App. 2000). When the erroneous admission of evidence is 

cumulative of other properly admitted evidence proving the same fact, the erroneous admission 

is harmless. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (en banc); Matz v. 

State, 21 S.W.3d 911, 912 (Tex. App.—Fort Worth 2000, pet. ref’d) (“It is well-established that 

the improper admission of evidence does not constitute reversible error if the same facts are 

proved by other properly admitted evidence.”).

Here, in addition to watching and hearing the tape, the jury also heard testimony from 

both Officer Navarijo and Officer Knutson. Officer Navarijo testified about appellant’s agitated 

attitude and appearance stating, “[h]is eyes were bloodshot. He smelled like alcohol. His face 

was a flushed red color.” Officer Navarijo said that he asked appellant to perform field sobriety 

tests at least twice. He also testified: “I want to say that one of the—one of the bottles I 

identified as a beer. I think it was called Paulaner. And there were about five bottles of beer 

total that were empty and five wine bottles that were empty.” Additionally, Officer Knutson 

testified about appellant’s appearance and his refusal to perform field sobriety tests. Further, 

even without the audio, the jury saw Officer Navarijo pulling numerous bottles from the vehicle. 

Upon review of the entire record, we determine the error was harmless because both officers 

testified at trial as to everything Officer Navarijo mentioned in the erroneously admitted portions 

of the audio tape. 

OPEN CONTAINER ENHANCEMENT

During the punishment phase of trial, the State waived an open container enhancement. 

However, the judgment states appellant was found guilty of driving while intoxicated—open 
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container. In his second issue on appeal, appellant argues the trial court erred by including the 

open container enhancement in the judgment, and the State concedes the error. We agree the 

trial court erred.

This court has the power to modify incorrect judgments. See TEX. R. APP. P. 43.2(b). 

Accordingly, we modify the written judgment to delete the open container enhancement and 

reflect that appellant is guilty of the offense of driving while intoxicated. 

CONCLUSION

We conclude the trial court erred in admitting the audio portions of the video tape. 

However, we conclude the erroneously admitted evidence was cumulative of other evidence. 

Accordingly, we have fair assurance that the error did not influence the jury, or had but a slight 

effect and was therefore harmless error. As modified, we affirm the trial court’s judgment.

Sandee Bryan Marion, Justice

PUBLISH