## Facts

- A Texas DPS trooper stopped John Robert Fischer at about 1:40 a.m. after observing an alleged seatbelt violation and recorded the encounter on patrol video with audio.
- During the stop, the trooper questioned Fischer, stated he smelled alcohol, and Fischer admitted consuming “three wines.”
- The trooper dictated into his microphone a narrative of Fischer’s condition (including eyes, speech, and odor of alcohol) while conducting the investigation.
- The trooper conducted an HGN test off-camera and later dictated a detailed description of the test observations onto the recording.
- Fischer was arrested and charged with driving while intoxicated.
- At trial, the State offered the videotape and the trooper’s narrated audio; Fischer objected on hearsay grounds.
- The trial court admitted the narrated statements as present sense impressions under Texas Rule of Evidence 803(1), and Fischer was convicted.
- The court of appeals reversed, treating the narration as an inadmissible “speaking offense report.”
- The Texas Court of Criminal Appeals reviewed whether the narration qualified under Rule 803(1) and whether offense-report limits prevented admission.

## Issues

1. Whether a law enforcement officer’s contemporaneously recorded investigatory narration of observations during a DWI stop is admissible as a present sense impression under Texas Rule of Evidence 803(1).
2. Whether admitting such narration would improperly circumvent limits on the State’s use of police offense reports by treating an oral narrative as a “speaking offense report.”

## Decision

- The Texas Court of Criminal Appeals affirmed the reversal of Fischer’s conviction.
- The court held the trooper’s narrated statements on the recording were not admissible as present sense impressions under Rule 803(1).
- The court treated the narration as a “speaking offense report” and concluded it could not be used to substitute for, or add to, the officer’s in-court testimony.

## Legal Principles

- Texas Rule of Evidence 803(1) permits statements describing an event made while perceiving it or immediately thereafter, based on reduced opportunity for reflection and fabrication.
- An officer’s deliberate investigatory narration recorded in an adversarial, evidence-gathering setting lacks the reliability rationale that supports the present sense impression exception.
- The State may not introduce an officer’s out-of-court narrative as substantive evidence by recording it during an investigation; doing so would bypass established restrictions on the evidentiary use of police offense reports.
- An officer may testify at trial to what was observed during the stop, but may not replace or bolster that testimony by playing an out-of-court “report” to the jury under Rule 803(1).

## Conclusion

The court held that a trooper’s contemporaneous, recorded narration of investigatory observations during a DWI stop functioned as a “speaking offense report” and was inadmissible hearsay, not a present sense impression, though the officer could present the same observations through live testimony subject to cross-examination.


Fischer v. State, 252 S.W.3d 375 (Tex. Crim. App. 2008)