I check the fresh opinions from the Dallas Court of Appeals almost daily. TCDLA helps me stay on top of opinions from across the State. Today, a TCDLA member shared an interesting DWI case with the defense bar.
Kurt Wells vs. The State of Texas– This opinion was handed down on 11/25 from the Amarillo court of appeals.
Facts -Kurt was convicted of DWI. Kurt performed the Horizontal Gaze Nystagmus test. (Personally, I would never take the HGN test, because, inter alia, the results are not confirmed on the in dash video tape.) At trial the State offered a statement from the American Optometrist Association declaring that HGN testing was valid and useful in DWI cases.
The Problem- The State offered this evidence through the arresting offer. The officer is not an optometrist, or a member of AOA. The officer had no knowledge of how the AOA came to its conclusion. We call such evidence, hearsay. Also, allowing these statements violates your right to confront the witnesses against you (Crawford).
State’s Argument on Appeal- Sure it was hearsay, and it did violate the 6th Amendment right to confrontation; but it was merely a harmless error. Please uphold the conviction.
Holding- Conviction Reversed. Here is a great quote from a justice (Brian Quinn) who gets it.
While it is laudable for the State to concede error, it seems
somewhat incongruous to invite like conduct in the future by simply holding that its actions
were harmless. Indeed, experience teaches that in the heat of battle litigants often push
the envelope of propriety until they are told to stop. As the old cliche goes, “give ’em an
inch and they’ll take a mile.” So, care should be taken to dissuade litigants from attempting
to take the mile when given the inch inherent in the harmless error rule. This seems
especially so in those situations were there exists a quantum of admissible evidence
indicative of guilt. The presence of legitimate evidence of guilt should not be seen by the
State as a way to slip into the record evidence of dubious legitimacy.
Harmless error holdings are dangerous because they encourage the State to continue violating your rights. It’s only by reversing convictions that conduct is changed.
Harmless error findings also discourage future appellants from asserting their rights on appeal. Many defendants can’t afford to appeal their conviction. Those who can afford an appeal may choose to forgo an appeal if they think the court will rule that error is harmless.
Speaking of harmless error. There is no harm in requiring a new trial. If we are going to err, it should be on the side of upholding the constitution and granting new trials. Mr. Wells might very well be convicted again. If he is, at least it is without violating his constitutional protections.