Cop's Testimony COLLAPSES in Front of the Entire Jury

Added: 2026-05-09

[00:00:04]In Judge Flecher's courtroom at the Harris County Criminal Court in Houston, Texas, Mr. Martinez was on trial for driving while intoxicated. Under Texas law, having a drink and getting behind the wheel is not enough to convict someone. The state has to prove it.

[00:00:18]Texas Penal Code 49.04 and 49.01 set the standard. Either alcohol took away his normal mental or physical abilities, or his blood alcohol content reached 0.08 08 or higher. Without that, there is no case. The district attorney finished her questions and sat down. The officer had his badge. He had his report. He had his training and every answer ready. Then the defense attorney started asking questions.

[00:00:42]>> Mr. Floyd, you ready?

[00:00:43]>> I'm sorry. I did the state pass.

[00:00:45]>> State pass witness.

[00:00:48]>> Yes, I'm ready to see where to begin.

[00:00:50]You saw the video that we all watched of you approaching um Mr. Martinez, right? Yes, sir.

[00:00:58]>> And despite your insistence on Well, you told the jury that you asked him how much he had to drink or if he had been drinking, right?

[00:01:07]>> That he he admitted he had.

[00:01:09]>> It's not illegal to drink alcohol and then drive if you're not intoxicated, right?

[00:01:14]>> Sorry.

[00:01:15]>> Um, are you a drinker?

[00:01:16]>> No, sir.

[00:01:17]>> You don't drink any alcohol?

[00:01:18]>> No, sir.

[00:01:18]>> Okay. Um, do you think everybody that drinks alcohol and then drives is guilty of DWI?

[00:01:24]>> No, sir. So you said you were out that night as um a speed to look for speeders enforcement >> I think. But I think you said you're out there looking for speeders >> and also uh drunk drivers.

[00:01:39]>> Yes sir.

[00:01:40]>> So you were like a speeding and drunk driving enforcer at that time.

[00:01:44]>> Correct.

[00:01:45]>> Um are you familiar with the saying that uh when you're a hammer everything looks like a nail?

[00:01:50]>> Sure.

[00:01:51]>> So that was kind of your role that night. You're out there looking for I mean it was the night shift.

[00:01:57]>> You're looking for people to arrest or pull over for DWI, right?

[00:02:02]>> Correct.

[00:02:02]>> And you happen to find someone who um looked like a nail. He was speeding and you smell a not of alcohol, right?

[00:02:10]>> Yes, sir.

[00:02:11]>> Now, you wrote an office report in this case, correct?

[00:02:14]>> Yes, sir.

[00:02:15]>> And you wrote that close in time to when this happened, right?

[00:02:18]>> Correct.

[00:02:19]>> You bring a copy of that with you?

[00:02:20]>> Yes, sir.

[00:02:20]>> I I saw you kind of looking down earlier. It's okay to refresh your memory >> because I know it was a little time ago, but um can I just ask you, you know, you don't read directly from it, word for word. You know, if you say, "Hey, do you mind if I refresh my memory?" That's fine. Okay.

[00:02:38]>> You stated um that you smelled an odor of alcohol on his breath.

[00:02:42]>> Yes, sir. [clears throat] >> And that was when the state was asking you questions right here.

[00:02:47]>> You didn't say I smelled a strong odor of alcohol.

[00:02:50]>> All right. You didn't say I smelled a heavy odor of alcohol. You just said I smelled an odor of alcohol. Okay.

[00:02:57]>> Right.

[00:02:58]>> Yes, sir.

[00:02:59]>> Um you could have said when they said what did you smell? You could have said I smelled a strong or heavy odor of alcohol on his breath. Right.

[00:03:05]>> That's correct.

[00:03:05]>> But you did not say that.

[00:03:07]>> That's right.

[00:03:08]>> Um but you'd agree with me anyway though that just having the odor of alcohol on your breath, it doesn't that doesn't prove a person's intoxicated.

[00:03:16]>> That's right.

[00:03:17]>> Everybody knows that, right? Yes, sir.

[00:03:18]Um, it doesn't even tell you how much alcohol a person has consumed. Right.

[00:03:23]>> Yes.

[00:03:24]>> Even if you said a strong odor of alcohol, that doesn't mean that, well, that person's really consumed a ton of alcohol, right?

[00:03:31]>> Correct.

[00:03:31]>> Okay. So, he admitted to drinking, you smelled the odor of alcohol. That that makes sense, right?

[00:03:37]>> Yes.

[00:03:38]>> Okay. Him drinking and him admitting to it and you smelling it, that doesn't mean he was intoxicated, though, right?

[00:03:45]>> That's right.

[00:03:46]>> Okay. I don't I don't know who's I mean I'm 53. My hearing is not what it used to be. But he didn't say I had several.

[00:03:55]We didn't hear that. Are you telling the jury that that's what you heard? How old are you?

[00:04:01]>> I'm busy.

[00:04:02]>> Do you have Do you wear hearing aids?

[00:04:04]>> No, sir.

[00:04:04]>> Do you have trouble hearing? Has any >> room? Yes.

[00:04:09]>> Okay. family members ever said something like that like they have to me that you have to repeat themselves.

[00:04:16]>> After listening to it, I think once or twice, are you still trying to I mean, you know, you're under oath here, right?

[00:04:21]>> Yes, sir.

[00:04:22]>> And you're still telling these folks here that that we all heard that he said, "I had several drinks." Or do you want to change that answer now? Just tell us the truth. He never said several drinks. They got this man charged with a criminal offense. You understand that?

[00:04:37]If you if you were charged or a family member, would you want an officer up there not telling the truth to a jury?

[00:04:43]>> Well, in objection, your honor, >> no, sir. Is that your answer?

[00:04:49]>> So, why is it okay for you to do that?

[00:04:51]You said it wasn't the truth.

[00:04:55]>> Did he say several drinks?

[00:04:57]>> He said, yes.

[00:04:58]>> Did he say I had several drinks? It's like you testified 200 two times >> as a judge over >> which is it cuz you just said no. He didn't say that.

[00:05:10]>> No, he said few.

[00:05:12]>> Is that fair to exaggerate facts or to tell the jury things that are not true?

[00:05:17]>> No, it was a few.

[00:05:20]>> He [clears throat] never said several.

[00:05:22]He never said a few. You play it again?

[00:05:24]I'll play it as many times as you want.

[00:05:27]Can you if I played it again, can you point out to the Drew where he said I had a few drinks? Officer, look. I'm going to try to trick you.

[00:05:35]>> It's important. We want to be fair, right?

[00:05:37]>> Yes, sir.

[00:05:37]>> We want to be fair. Your job's too important to not tell the truth under oath, isn't it?

[00:05:44]>> That's right.

[00:05:44]>> I mean, is it is it that important that you've got to exaggerate and make up things that aren't true just to try to convict this guy?

[00:05:51]>> No, I'm not trying to convict the truth.

[00:05:53]>> Well, then why aren't you telling the truth to the jury? We all heard it. The video show the truth, >> right? The video shows the truth.

[00:06:00]>> Yes, sir.

[00:06:01]>> You asked him if he had been drinking.

[00:06:04]>> Yes, sir.

[00:06:05]>> He said a little bit.

[00:06:10]>> Really? It's not important to you. Did you watch the video before testifying?

[00:06:16]>> I just wanted to be clear about what happened. And we have the video and then we have what you're saying the video said. Those don't match up, do they? Yes or no? Is what you told the jury match up with what is on the video?

[00:06:30]>> How is that okay?

[00:06:32]That's not okay. You went up to him and you asked him, "Have you been drinking?"

[00:06:36]And he said, "A little bit." Right. I I will play the video again. It's in evidence. Do I need to or will you just agree with me that I that that's the truth? Because if you're not going to agree with me that that's the truth, you want me to play it again?

[00:06:49]>> Sure.

[00:06:51]>> Mine help for the record. That's states exhibit 2 at the 2 minute 34 second >> mark.

[00:07:12][clears throat] You said how much did he have? Had he had anything to drink? What did he say?

[00:07:16]>> A little bit.

[00:07:17]>> Little bit. He didn't say a few.

[00:07:20]Correct.

[00:07:21]>> He did not say several. Correct.

[00:07:24]Okay. So, that's not a part of this case.

[00:07:27]Okay. Go ahead. Thank you.

[00:07:30]>> Stop right here because what you just watched is not just a back and forth between an attorney and a cop. This is a calculated legal strategy. Under Texas Rule of Evidence 607, any party in a trial has the right to challenge a witness's credibility. And the most powerful way to do that is to catch them contradicting their own words, not your words. their words, what they wrote, what they signed, what they submitted as the official record. That is called a prior and consistent statement. And it matters because if the officer got the drinking admission wrong, the jury now has a reason to question everything else he said. So far, the defense has shown that the officer testified Martinez admitted to several drinks. The video says a little bit. The police report says one. Those are three different stories from the same witness. And the defense attorney is not done. The officer still has to explain his observations about Martinez's physical condition, the ones he used to justify the arrest. And that is where this is about to get very interesting.

[00:08:28]>> You came back to the vehicle, you asked him again, "How much have you had to drink tonight?" And he said, "One."

[00:08:37]And you said, "Are you sure?" He said, "Yeah." He didn't say a few. Right. He never says so. Correct.

[00:08:46]Is there anywhere else on the video that he said a few or several?

[00:08:49]>> No, there's a part of the video where he says honestly. Yeah.

[00:08:52]>> I'm sorry.

[00:08:53]>> There's a part of the video where he says honestly.

[00:08:56]>> He said yes.

[00:08:57]>> Honestly, yes.

[00:08:59]>> Yeah.

[00:09:00]>> Well, that's why I wanted to show you what the state showed you. And the answers that you gave don't match up with what Mr. Martinez said, right? Or we heard you ask him two times about drinking. Mhm.

[00:09:13]>> Did he ever say he had a few or several?

[00:09:16]>> But why would you come to court under oath and tell the jury that? Why? That's May I witness your um I've got copies of your offense report.

[00:09:31]>> I'd like to show them to you. I don't know what what you wrote in your office report, right? That you asked the driver if he had any alcoholic beverages, right?

[00:09:42]We heard that. That's the whole purpose of that. Right. We see the truth. That's the truth.

[00:09:48]>> Right. Not what you're saying, right?

[00:09:51]Right.

[00:09:53]>> And he stated, "What did you write?" He had only one and you put O N E. And then you put parentheses and the number one in there to make sure that there was no confusion in your office report that he said he had one drink.

[00:10:08]>> Yes. [clears throat] He never wrote anywhere that he had a few or several or that he came back later and said, "Well, honestly, I have more to drink." Is that it anywhere in there?

[00:10:19]>> No.

[00:10:19]>> Is this the kind of police work that you are used to getting away with doing?

[00:10:23]>> No.

[00:10:24]>> Oh, so you don't get away with this all the time?

[00:10:26]>> Or you do get away with it all the time?

[00:10:30]>> Yes or no? Do you get away with writing relative?

[00:10:33]>> It's What's going on here?

[00:10:36]>> On the back, you write again >> that you asked the driver if he had any alcohol and beverages. That's like two places. And he stated that he had only one >> and you wrote the number one o and then you put parentheses the number one. Anything about that I misrepresented?

[00:10:58]>> No. You approached the vehicle and he was holding his license and insurance out the window.

[00:11:04]>> Yes, sir.

[00:11:04]>> You were going to ask him for that, right?

[00:11:06]>> Yes, sir.

[00:11:07]>> How in the world is that a sign of intoxication? Could you show me it?

[00:11:12]>> Yes, sir.

[00:11:13]>> That's a sign of intoxication.

[00:11:15]>> Usually, >> is that a sign of intoxication? Yes or no?

[00:11:19]>> No.

[00:11:19]>> Then why are you here trying to tell the jury that it is?

[00:11:22]>> I never said that. Do you remember 10 minutes ago when they were asking you questions and you said he was bouncing his license and you're trying to insinuate that that was weird or some observation >> right about like his mental or physical faculties.

[00:11:41]>> Yes sir. [snorts] >> So >> okay you you talked about um Nitsa right?

[00:11:47]>> Yes sir. And I know this isn't the manual you received, but National Highway Traffic Safety Administration, that's NHTSA, right? That's an acronym that stands for the federal agency. That is the authoritative body on um how to administer field sobriety test. Right.

[00:12:07]>> Correct.

[00:12:07]>> And they give you an arsenal of three tools, three tests. There's an eye test, the horizontal gaze, and status. Right.

[00:12:15]You know the name of the other two?

[00:12:17]>> Yes.

[00:12:19]One extent.

[00:12:20]>> Okay. Three tests that you can use to administer and as you said to determine if a person is intoxicated or not, right?

[00:12:30]>> Yes, sir.

[00:12:31]>> And that's what you were intending to do. You smelled alcohol. You asked him if he would do those sobriety tests.

[00:12:38]Yes, sir.

[00:12:38]>> And he said no. People have the right to refuse those tests. Right.

[00:12:42]>> Correct. And he he involved that right.

[00:12:46][clears throat and laughter] He thought about it. He made a conscious decision and said no. Right.

[00:12:52]>> Yes, sir.

[00:12:52]>> Which he has the right to do.

[00:12:54]>> Yes, sir.

[00:12:55]>> Now, what you decide to do if somebody refuses, that's up to you.

[00:13:02]>> It's up to you. Objection. That's nonresponsive. Your honor, asked a yes or no question.

[00:13:09]Both of you guys are it's just don't get hostile. Ask the question. Let him answer. That's it. Objective nonresponsive.

[00:13:18]>> What's your question?

[00:13:19]>> I said if he refuses or submits, what you if he refuses, what you decide to do next is up to you.

[00:13:27]>> Yes.

[00:13:27]>> Okay. Okay.

[00:13:29]So you you intended to perform those tests as [clears throat] you stated to determine if he was intoxicated or not, right?

[00:13:38]>> Correct.

[00:13:38]>> That you were not able to perform those tests to determine if he was intoxicated or not. Correct.

[00:13:46]>> You stated that um so what in your in your training you went through um you received a manual about the standardized field soiety test, right?

[00:13:55]>> Yes, sir. And that talks about the history of alcohol in the country, administration of the field sobriety tests, but also a whole list, a litany of of [snorts] signs about how a person's driving that could also indicate intoxication, right?

[00:14:13]>> Yes, sir.

[00:14:14]>> I mean, there's a hundred different clues they list that say if a person's driving like this, that could mean they're intoxicated.

[00:14:22]Did you know this feeding has never been one of those signs?

[00:14:26]>> This is >> speeding. Did you know this feeding has never been listed as one of those signs?

[00:14:31]>> It says feet and parking.

[00:14:33]>> Is everybody that's speeding um intoxicated?

[00:14:37]>> Only at night.

[00:14:39]>> When you're out there looking for drunk drivers?

[00:14:41]>> Uh not looking for anyone.

[00:14:44]>> Well, that's not what you said earlier, is it? You said you were out there looking for speeders and drunk drivers.

[00:14:49]>> No, I was still in traffic. Um, Mr. Martinez, there's no evidence that he was swerving, correct?

[00:14:56]>> No, sir.

[00:14:56]>> You didn't testify to that, right?

[00:14:58]>> No, sir.

[00:14:59]>> You testified to everything you observed about his driving to the jury.

[00:15:04]>> Yes, sir.

[00:15:05]>> Which would indicate that you thought he might be intoxicated, right? You didn't keep anything back, right? Was he wasn't running red lights, stop signs, swerving all over the road, right? What he did violation? Yes, sir.

[00:15:18]>> Right. We all know he was he was speeding.

[00:15:21]>> Correct.

[00:15:21]>> That doesn't prove a person is intoxicated, right?

[00:15:24]>> I don't know if you saw your uh your [snorts] radar in there, but all those people or Well, when when you pull him over, there was nobody around them.

[00:15:33]There were a few other cars that passed.

[00:15:35]Your radar kept going like 77 well over the speed limit.

[00:15:39]>> Yes, sir.

[00:15:40]>> All those people intoxicated just because their speed?

[00:15:42]>> No, sir.

[00:15:43]>> Okay. We know that that was a traffic violation.

[00:15:47]>> Yes, sir. Was there anybody that called in like 911? There's a drunk driver out there?

[00:15:52]>> No.

[00:15:53]>> With respect to Mr. Martinez?

[00:15:54]>> No, sir.

[00:15:55]>> So other than just driving fast, there was nothing else about him driving that indicated to you intoxication.

[00:16:02]>> No, sir.

[00:16:03]>> Okay.

[00:16:03]>> When you pull pulled over, he he Some people who are intoxicated, they keep driving for a long time before they pull over, right?

[00:16:10]>> Yes, sir.

[00:16:11]>> It shows slow reaction time, right?

[00:16:13]>> Yes, sir. There's nothing about how he acted that showed a slow reaction time.

[00:16:17]He put his blinker on, he pulled over, right?

[00:16:20]>> Yes, sir.

[00:16:21]>> Nothing about the way he pulled over indicated intoxication. Correct.

[00:16:25]>> No, certainly he did straight on the yellow line.

[00:16:28]>> Yeah, we we heard you say that.

[00:16:30]>> In your opinion, because he pulled over to the left instead of the right.

[00:16:34]>> Yes, sir.

[00:16:35]>> That's not how you wanted him to pull over, right?

[00:16:40]Did you get out your bullhorn and say driver pull over to the right shoulder?

[00:16:45]>> No, sir.

[00:16:46]>> You could have, right?

[00:16:48]>> Yes, but to say yes, sir.

[00:16:50]>> You could have told him where you wanted him to pull up.

[00:16:53]>> Yes.

[00:16:53]>> But you followed him. You put his blinker on, pulled over to the left, and that's where you stopped him. And then Officer Pony, or was he your corporal at the time?

[00:17:03]>> Yes.

[00:17:03]>> He actually showed up after you, and he helped block the scene.

[00:17:07]>> Blocked that lane. So you it was safe.

[00:17:10]>> Yes, sir.

[00:17:11]>> Stop again because this is a turning point. The officer just admitted under oath that one of the key signs he used to justify the arrest is not recognized by the National Highway Traffic Safety Administration. The federal agency that wrote the manual on how officers are trained to identify drunk drivers, the one he was trained on. And that is a problem because he put it on the stand anyway in front of a jury as evidence that Martinez had lost his normal mental and physical faculties under Texas Penal Code 49.01.

[00:17:40]The drinking admission does not match the report. The physical observations are coming from a list that does not exist in any official training. And the officer has confirmed both himself. He still has to explain what comes next.

[00:17:53]>> He was out on the scene as well. I thought the fact is [clears throat] >> and he observed Mr. Martinez as well.

[00:18:00]Correct.

[00:18:00]>> Correct.

[00:18:01]>> Now, I don't know how closely you watch the video, but you know that that there's there's more things that you said that are not true when the state asked you questions. Do you know what those are? You have your offense report and officer Fon wrote a supplement.

[00:18:18]Correct.

[00:18:19]>> That's correct. And officer Pon, he wrote what he observed of of Mr. Martinez, right?

[00:18:25]>> Correct.

[00:18:26]>> You stated to the jury that you observed Mr. Martinez chewing gum. That >> look through your offense report and point out the place anywhere in there where it says that you observed Mr. Martinez chewing gum.

[00:18:40]>> No, I didn't have a report. No, sir.

[00:18:42]That's because you didn't notice that.

[00:18:44]Officer Pony did. Officer Fonty comes out and he he even So you told the jury they said, "What else did you observe?"

[00:18:52]I observed Mr. Martinez chewing gum and that was a sign he was masking hiding that he was intoxicated.

[00:18:59]>> Yes.

[00:19:00]>> Really?

[00:19:02]>> Really?

[00:19:03]>> Yes.

[00:19:04]>> Officer, you didn't even know he had gum in his mouth. Officer Pony comes out. I mean, eventually you did because Officer FY told you, right?

[00:19:11]>> No, I didn't know. So, >> where is it in your office report? Show me. Just show me quick. Where's it on the video that you observed gum in his mouth? Officer Bon comes out. He's He asks you, did you watch this part? He asks you, did he have gum in his mouth?

[00:19:27]And you said, I don't I don't think so.

[00:19:28]>> Say at that point, he's asking about another person. He's not here.

[00:19:32]>> This goes towards credibility, judge.

[00:19:35]What he testified to earlier, >> he's asking about somebody else's state.

[00:19:40]>> I mean, I can ask what happened. That's good question.

[00:19:44]You weren't um you didn't notice gum in his mouth. The other officer asked [clears throat] you and notified you. He had gum in his mouth. Right.

[00:19:58]>> Yes.

[00:19:58]>> Right. And at first you weren't aware and then Officer Pon goes up to the car and tells Mr. Martinez, "Open your mouth." Right?

[00:20:09]>> You saw that, right?

[00:20:11]>> And Officer Pon looks in Mr. Martinez's mouth and he says, "Spit your gum out.

[00:20:15]You're not allowed to have gum in a patrol car." Right? You didn't have any part of that. Officer Pon hadn't even observed it or asked him to open his mouth. You would have never known. But you're here today representing things to the jury that they're totally not true.

[00:20:29]I mean, I know the gum is an insignificant part, right? I mean, you're not trying to convict a person because you got gum in his mouth for DWI, right?

[00:20:38]>> You're not. So you're here like testifying in a in a neutral capacity or are you biased against Mr. Martinez?

[00:20:46]>> I'm biased. No one >> unbiased.

[00:20:49]>> So you're here in a neutral capacity.

[00:20:52]>> Okay. Just represented.

[00:20:53]>> Okay. So if the if the jury um it's it's who decides whether or not um it's guilty or not guilty, you or the jury?

[00:21:05]>> The jury. Right. you when you arrest a person that doesn't mean that they're guilty of an offense, right?

[00:21:11]>> You just have probable cause. I mean, well, [clears throat] I mean, it sounds like there may be a question about whether you even had probable cause, right?

[00:21:21]>> Just a legal conclusion at that point.

[00:21:26]>> He was he was earlier making legal conclusions, was he not overruled?

[00:21:32]>> I guess my point is is that [clears throat] probable cause You know, you smell alcohol, you pull someone off the road, it's probably a safe thing to do, right?

[00:21:40]>> Yes, sir.

[00:21:42]>> If the jury says they don't think that it was proved in this case, they can say not guilty. Right.

[00:21:50]>> That's right.

[00:21:50]>> And nothing would happen to you professionally in your job if they said not guilty. Right.

[00:21:55]>> That's right.

[00:21:57]>> And since you're neutral and not biased against Mr. Martinez, whatever the jury decides, you would be completely fine with. Correct. You said you're not here trying to convict them. They said not guilty. You should be completely fine with that.

[00:22:10]>> That's correct.

[00:22:11]>> That's correct. So, it's fine for whatever the jury decides. You'll be totally fine with [snorts] I'm curious as to was her slirt speech.

[00:22:26]>> Were there bloodshot eyes? I'd like to know about the indish indicative intoxication.

[00:22:31]>> That's where I was going next. Judge. So the I'll get there. Yeah, >> get on it, dog. On it.

[00:22:37]>> This case is a master class in what probable cause actually means in practice. Most people assume that if a police officer pulls you over, smells alcohol, and you admit to drinking, that is enough to arrest you. Under Texas law, it is not. Texas Penal Code 49.01 requires the state to prove that alcohol actually took away your normal mental or physical faculties. A smell and an admission get you pulled over. They do not get you convicted. And when the evidence used to justify that arrest cannot survive basic cross-examination, the court has a tool for that. The exclusionary rule established by the Supreme Court in MAP versus Ohio exists for exactly this reason. It exists to make sure that the only way the government can use evidence against you is if they obtained it the right way.

[00:23:22]When they don't, the evidence disappears. And so does the case. Most people never see the inside of a courtroom. But what happens in there affects every single one of us.