Rafael Javier Rodriguez v. State

                             NUMBER 13-02-607-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

RAFAEL JAVIER RODRIGUEZ,                                    Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

                  On appeal from the 92nd District Court

                           of Hidalgo County, Texas.

CONCURRING OPINION

                                Before the Court En Banc

                   Concurring Opinion by Justice Castillo

Respectfully, for the reasons that follow, I concur with the result. Appellant Rafael Javier Rodriguez's vehicle struck a motorcycle on a public roadway.  A jury found him guilty of intoxication assault,^[1]  assessed a sentence at six years in the Texas Department of Criminal JusticeBInstitutional Division,  and imposed a $10,000 fine.^[2]  Rodriguez presents eleven issues for review.^[3]  I address these seriatum, and affirm. 

I. SUFFICIENCY OF THE EVIDENCE

In his first and second issues, Rodriguez argues that the evidence is legally and factually insufficient to prove either (1) intoxication, or (2) that the accident was caused by reason of that intoxication.  The State counters that the evidence sufficiently establishes that (1) while intoxicated and by reason of that intoxication, (2) Rodriguez caused his vehicle to collide with the victim's motorcycle, and (3) the victim sustained serious bodily injury. 

A.  Standard of Review

A legal sufficiency challenge calls on us to review the relevant evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443  U.S. 307, 319 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).  In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution."  Zuniga v. State, 144 S.W.3d 477, 484‑85 (Tex. Crim. App. 2004).   However, we approach a factual‑sufficiency review with appropriate deference, to avoid substituting our judgment for that of the fact finder.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim App. 2000) (en banc). The sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case.  See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd).  The conviction will be upheld if the evidence is sufficient to support a finding of guilt under any one of the theories submitted.  Tex. Code Crim. Proc. Ann. art. 37.07, ' 1(a) (Vernon Supp. 2004-05) (verdict must be general); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (en banc). 

B.  The Elements of Intoxication Assault

The hypothetically correct jury charge in this case would ask the jury if Rodriguez:  (1) by accident or mistake, (2) while operating a motor vehicle, (3) in a public place, (4) while intoxicated, (5) by reason of that intoxication, (6) caused serious bodily injury to another.  See Tex. Pen. Code Ann. _ 49.07(a)(1) (Vernon 2003).  "Intoxicated" means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, or having an alcohol concentration of 0.08 or more.  See Tex. Pen. Code Ann. ' 49.01(2)(A), (B) (Vernon 2003).  A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.  Tex. Pen. Code Ann. ' 6.04(a) (Vernon 2003).  

Rodriguez's argument on appeal focuses on the elements of intoxication and causation by reason of intoxication.  I turn to the record evidence.

C.  Legal Sufficiency Analysis

At approximately 9:30 p.m. on November 8, 2001, Rodriguez drove his van on Magnolia Street where the street intersects with FM 88, a public road with one lane of travel going either direction.  Espiridion Jackson followed him in a separate vehicle.  Meanwhile, Linda Perez, a motorcycle-safety instructor, drove her motorcycle on FM 88 toward the Magnolia Street intersection.^[4]  Traveling at approximately 35 miles per hour, she saw two headlights in her lane traveling toward her.  Perez reduced her speed to 25 miles per hour, assuming that the driver was in the wrong lane to negotiate a turn somewhere in front of her.  The vehicle continued its approach in the wrong lane.  She maneuvered her motorcycle to the far left of her lane and saw another set of headlights directly behind the van approaching her, also in the wrong lane.  With little time to spare and aware that the first vehicle was not going to move out of her lane, but concerned that the second vehicle might move to its proper lane, Perez  decided to "go to the ditch, the curb instead of to the other lane because of the vehicle behind the van."  At that instant, the van was upon her.  The driver made no attempt to avoid the collision.  The van did not stop before the impact, which occurred in her lane. Perez recalled that she was on the ground pinned underneath the van, in and out of consciousness, and in pain. 

The first officer on the scene, Jaime Cano, testified that the motorcycle landed ten to fifteen feet from the point of impact.  The van stopped approximately eighty feet from the motorcycle.  Photographs of the van admitted in evidence show damage to the front of the van on the driver's side, consistent with a head-on impact.  Inside the van in plain view, Cano saw an open 24-ounce container of beer on the left side of the front-seat console.  The open container showed condensation and appeared to be full. Through the open side door of the van, also in plain view, Cano saw three unopened 24-ounce cans of beer on the floorboard behind the driver's seat.^[5]   Persons at the scene directed Cano to Rodriguez as the driver of the van.  Cano told Rodriguez to follow him to the police unit to talk.  While walking toward the unit, Cano "smelled the strong odor of alcohol" when Rodriguez spoke.  Rodriguez told him he thought he hit a dog.  Cano noticed Rodriguez "was staggering as we were walking to the unit . . . to the point where he had to hold on to [Cano's shoulder] to keep from falling down."  Rodriguez also told him that "the lights were off."  Because Rodriguez was trembling, staggering and Cano could smell alcohol, Cano told him to sit down on the front seat of the unit for Rodriguez's personal safety.  Rodriguez complied.  Meanwhile, a video camera that Cano personally installed in the police unit was operating.^[6]  Cano returned to the impact scene to continue his investigation of the scene.

Officer Garcia testified his supervisor instructed him to transport Rodriguez to the police department.  Garcia was not aware that the videotape was operating  while he transported Rodriguez in Cano's unit.  On the way,  Rodriguez told Garcia the motorcycle did not have its lights on and he thought he hit a dog. Admitted in evidence, the videotape reflects Rodriguez asked Garcia if he smelled like beer.  Garcia responded he did not smell anything.  The videotape reflects Rodriguez stated, "I didn't see it coming . . . It was coming with its light off . . . Do I smell like beer?"  Garcia testified that, in his opinion, Rodriguez did not have the normal use of his mental and physical faculties at the time. 

Officer Juan Rodriguez^[7] testified that the van traveled approximately seventy-nine feet from the point of impact.  A strong odor of an alcoholic beverage emanated from inside the van. The first time he contacted Rodriguez was at a residence about an hour and twenty minutes after the accident. Rodriguez told the officer he drank "three to four beers."  The officer noticed Rodriguez's speech was slurred.  Officer Rodriguez testified he was ordered not to arrest Rodriguez.

Appellant Rodriguez testified that he drank less than one beer that evening because of an upset stomach.  He was with E. Jackson and two other men who drank beer in various amounts.  He denied that he was intoxicated at the time of the collision.  He stated that the beer in the front seat belonged to E. Jackson, who exited the van to drive his own vehicle to Rodriguez's house.  Rodriguez testified that the beers in a bag in the back of the van belonged to an employee of his construction company.  Rodriguez admitted he asked the transporting officer whether he smelled like beer.  He explained that after exiting the unit at the police department, he told the officer that he had spilled beer on his right sleeve.  Rodriguez denied that his speech was slurred.  He denied he staggered, explaining that, while walking toward the police unit with Cano, he stepped over a cable and felt pain in his back. He testified he did not know whether he had alcohol on his breath because, "I didn't smell it." Finally, Rodriguez denied that his speech on the videotape was slurred. 

Regarding the collision, Rodriguez testified that on the way to his nearby home,  he stopped at the stop sign on Magnolia Street and waited for a vehicle to pass.  He then proceeded through the intersection, making a "left turn and felt something hit the van."  "The hit was hard," he stated.  He did not see the motorcycle before impact.  During cross-examination, Rodriguez testified he thought he hit a dog because "It didn't seem like an accident . . .  It didn't seem like an impact, a big impact.  I didn't see any lights."  He admitted he did not see a dog on the roadway before the impact. Immediately after the collision, Rodriguez walked to his residence to look for a jack stand so that he could lift the van and remove Perez, but he did not find the tool.    Perez, the victim, testified that turning the ignition on her motorcycle automatically turns on the headlights.  She testified that two driving lights mounted on the engine guard of her motorcycle also turn on automatically.  Her lights were on as she traveled on FM 88.

Viewed in the light most favorable to the verdict, evidence of the "loss of faculties" definition of intoxication in the record includes:  (1) Rodriguez's slurred speech; (2) staggering to the point of holding on to an officer's shoulder; (3) the smell of alcohol on his breath; (4) his statement to an officer that he drank "three to four" beers; (5) driving in the wrong lane of a public road; (6) lack of awareness that a vehicle was approaching head-on; (7) after a head-on collision with a motorcycle, traveling an additional seventy-nine feet while dragging a person underneath; (8) admitting that he never saw the headlights; (9) admitting that he never saw the motorcycle even upon impact; and (10) officer Garcia's opinion that Rodriguez did not have the normal use of his mental and physical faculties.^[8]  I conclude that a rational trier of fact could reasonably find beyond a reasonable doubt that Rodriguez did not have the normal use of his mental of physical faculties by reason of the introduction of alcohol.  See  Tex. Pen. Code Ann. _ 49.01(A) (Vernon 2003).

Viewed in the light most favorable to the verdict, evidence that the accident was caused by reason of intoxication includes the same evidence to support he was intoxicated and:  (1) the accident occurred within walking distance of Rodriguez's residence, from which the jury could infer it occurred on a roadway familiar to him; (2) beginning at approximately 6:00 p.m. until the time of the accident, Rodriguez was with three individuals who drank beer in various amounts while they were together; and (3) the photographs admitted in evidence showed damage to the van directly in front of the driver (as compared with Rodriguez's testimony that he never saw the motorcycle).  The jury could reasonably conclude that Rodriguez was driving his personal van on a familiar road.  The jury could reasonably infer that, by reason of intoxication, Rodriguez caused serious bodily injury to Perez after a head-on collision in which Rodriguez was the errant driver on a familiar road.  See Tex. Pen. Code Ann. _ 6.04 (Vernon 2003); see also Sanders v. State, 119 S.W.3d 818, 821 (Tex. Crim. App. 2003) (a rational jury could have inferred an ultimate fact); Evans v. State, 5 S.W.3d 821, 823 (Tex. App.BSan Antonio 1999, no pet.) (en banc) (finding evidence legally and factually sufficient to prove loss of faculties definition).

Viewing the evidence in the light most favorable to the verdict, I conclude the evidence is legally sufficient to sustain the elements of intoxication and causation by intoxication and agree to overrule Rodriguez's first issue.

D.  Factual Sufficiency Analysis

In his second issue, Rodriguez challenges the same elements of intoxication and causation, arguing additionally that evidence of the elements, if any, is too weak or greatly outweighed by contrary evidence.  Rodriguez points to testimony from law enforcement officers that he passed three field sobriety tests and from laymen that he did not drink.  The State counters that evidence sufficiently controverted Rodriguez's defensive theory that he was not intoxicated.  

Our neutral review of all the evidence, both for and against the challenged elements, looks to determine whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or whether proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  See Zuniga, 144 S.W.3d at 484‑85; see also Zuliani v. State, 97 S.W.3d 589, 593‑94 (Tex. Crim. App. 2003).  We remain mindful of the jury's role to resolve conflicts in testimony.  See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998) (en banc) (questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact); see also Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974).  We must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution.  Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996) (en banc).  With these principles in mind, I turn to the evidence.

Evidence against the finding of the element of intoxication includes testimony that Rodriguez passed three field sobriety tests conducted by officer De Hoyos at the police station.^[9]  The tests were witnessed by Garcia, who transported Rodriguez to the station. While De Hoyos was "booking" Rodriguez, the police chief Primitivo Rodriguez  arrived, asked if Rodriguez passed the tests, and then requested that a test be performed in his presence.  This was done, and Rodriguez passed the one-leg balance test. According to the police chief, Rodriguez lifted his foot and did not stagger.  The police chief then ordered Rodriguez released because, based on his experience,  he was "not intoxicated."  However, officer Garcia testified that, in his opinion, Rodriguez did not actually pass the test because he used a nearby file cabinet for support, contrary to normal testing procedure.   

When officer Juan Rodriguez arrived at the police station, he learned that Rodriguez had been released.  Officer Rodriguez testified he was the sole officer in the department certified to perform field sobriety tests.  When he questioned that the tests were performed by uncertified personnel, the police chief told him to contact Rodriguez and re-test him.  Approximately "one hour and forty to fifty minutes" after the collision, officer Rodriguez administered three field sobriety tests on Rodriguez at a residence.^[10]  Rodriguez passed all three. 

Evidence reflected that, at various times between 6:00 p.m. and 9:30 p.m (the time of the collision), Rodriguez was in the company of E. Jackson, Jackson's brother Andres,  and Javier Guerrero.  Rodriguez admitted to drinking only one beer, which he obtained at Andres's residence. Andres had begun drinking earlier, and continued to drink while in the van.  The four traveled to a barbecue, where, according to Rodriguez, the host and the host's two friends were intoxicated.  Both the Jackson brothers testified that they did not see Rodriguez drink that evening and that he was not intoxicated.  When asked to clarify grand jury testimony that he saw Rodriguez consume alcohol in the van, E. Jackson explained, "[I]t's not what I meant to say. . . .  I didn't see him consume alcohol."  Jackson also testified that the beer in the front seat of the van belonged to him.

Based on its resolution of historical facts and credibility determinations, the jury implicitly rejected evidence favorable to Rodriguez, including evidence that he did not consume an intoxicating beverage and was not intoxicated.  The jury, as fact-finder, could have disbelieved all the witnesses or any of them, and was free to reject their testimony.  Mosley, 983 S.W.2d at 254; Esquivel, 506 S.W.2d at 615.  Additionally, the jury could have reasonably inferred that De Hoyos's field sobriety tests were unreliable because he was not certified and because of testimony that Rodriguez used a file cabinet for support.  Similarly, the jury could have reasonably inferred that the final field sobriety test, conducted at least an hour and twenty minutes after the collision, was too remote in time to be reliable.  Finally, the jury could have reasonably concluded that evidence of Rodriguez's intoxication, taken together with evidence of his operation of a motor vehicle on the wrong lane on a familiar roadway toward an oncoming motorcycle that he never saw, outweighed evidence that he passed the field sobriety tests.  See Tex. Pen. Code Ann. '_ 49.01(A), 49.07(a)(1) (Vernon 2003); see also  Evans, 5 S.W.3d at 823.  The same evidence allowed the jury to reasonably infer that, by reason of that intoxication, Rodriguez caused Perez serious bodily injury.  See Tex. Pen. Code Ann. '_ 6.04, 49.07(b) (Vernon 2003).^[11]

Because we must assume that the jury resolved conflicts, including conflicting inferences, in favor of the verdict, I defer to that resolution.  Mosley, 983 S.W.2d at 254.  Thus, viewing the evidence in a neutral light, I conclude that evidence supporting the elements of intoxication and causation by intoxication is not too Iak to support the jury's finding beyond a reasonable doubt; nor is the Iight of the contrary evidence strong enough that the State could not have met its burden of proof.  Zuniga, 144 S.W.3d at 484‑85.  Thus, the evidence is factually sufficient to sustain the elements of intoxication and causation by intoxication.  I agree with the majority decision to overrule Rodriguez's second issue.

II.  MOTION TO SUPPRESS

By his third through seventh issues, Rodriguez argues the trial court erred in denying his motion to suppress^[12] based upon (a) unlawful arrest (third issue), (b) unlawful detention (fourth issue), (3)  noncompliance with statutory warnings in article 38.22 (fifth issue),^[13] (4) unlawful detention (sixth issue), and (5) noncompliance with the transportation code (seventh issue). Rodriguez asserts that, under article 38.23, the trial court must suppress the evidence.^[14]  The State counters that the trial court properly denied the motion on each of the grounds presented.

A.  Standard of Review

A trial court's ruling on a motion to suppress is generally reviewed for abuse of discretion. Tex. Code Crim. Proc. Ann. art. 28.01(1),(6) (Vernon 1989); Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985) (en banc); Ford v. State, 26 S.W.3d 669, 672 (Tex. App.BCorpus Christi 2000, no pet.).  We review a trial court's ruling on a motion to suppress under the bifurcated standard enunciated in Guzman v. State, 955 S.W.2d 85, 87-88 (Tex. Crim. App. 1997). At a suppression hearing, the trial court is the sole finder of fact.  Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993). The trial court is free to believe or disbelieve any or all of the evidence presented.  Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) (en banc); see Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990) (en banc).  Thus, in reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's determination of historical facts and application-of-law-to-fact questions that turn on credibility and demeanor.  Perales v. State, 117 S.W.3d 434, 437 (Tex. App.BCorpus Christi 2003, no pet.); Morrison v. State, 71 S.W.3d 821, 827 (Tex. App.BCorpus Christi 2002, no pet.).  We review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor.  Morrison, 71 S.W.3d at 827.  In the absence of explicit fact findings, we assume that the trial court's ruling is based on implicit fact findings supported in the record.  Perales, 117 S.W.3d at 437; see Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (recognizing implicit fact findings).  We then review de novo whether the facts, express or implied, are sufficient to provide legal justification for admitting the complained-of evidence.  See Morrison, 71 S.W.3d at 827 (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)).

In determining whether a trial court's decision is supported by the record, we ordinarily consider only evidence adduced at the suppression hearing.  See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (en banc).  However, this general rule is inapplicable where, as in this case, the suppression issue has been consensually re‑litigated by the parties during trial on the merits.^[15]  Id. Where the State raises the issue at trial, either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re‑open the evidence, and consideration of the relevant trial testimony is appropriate in our review.  Id. Moreover, it would be unreasonable to ignore trial evidence in our review of the trial court's suppression decision, only to be confronted by the evidence in our consideration of whether the error was harmless.  See Tex. R. App. P.44.2; Rachal, 917 S.W.2d at 809.  

We uphold a trial court's ruling on a suppression motion if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996 (en banc); Perales, 117 S.W.3d at 438.  This is true even if the decision is correct for reasons different from those espoused by the trial court.  Romero, 800 S.W.2d at 543.  On the other hand, if the issue is whether an officer had probable cause to seize a suspect, under the totality of the circumstances, the trial judge is not in an appreciably better position than the reviewing court to make that determination.  Guzman, 955 S.W.2d at 87; see also Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998).  Thus, we will review each of Rodriguez's issues concerning the ruling on his motion to suppress based on the ground presented.  Because the trial court did not make explicit findings of fact, we will review the evidence in a light most favorable to the trial court's ruling.  Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (en banc).  We will not disturb any ruling on a motion to suppress that is supported by the record. Gruber v. State, 812 S.W.2d 368, 370‑71 (Tex. App.BCorpus Christi 1991, pet. ref'd); see Villarreal, 935 S.W.2d at 138; Perales, 117 S.W.3d at 438.

B.  The Evidence

Rodriguez argues that he was illegally detained, illegally arrested, and that evidence gathered in violation of his constitutional right against unreasonable searches and seizures should have been suppressed.  By his motion, Rodriguez sought to suppress "the fruits of everything derived from the unlawful arrest and detention which would include the videotape in the police car (State's Exhibit 2), everything that transpired at the police station, and any kind of refusals at the police station and subsequent refusals." 

The parties do not dispute that:  (1) at the time in question, Rodriguez was a part-time municipal judge and, by virtue of his position, worked with the officers involved in the investigation of the collision, and knew statutory and arrest procedures;^[16] (2) concern for his safety was the reason that Cano requested that Rodriguez sit in the front seat of the police unit and that De Hoyos requested that Garcia transport him to the police station;^[17] (3) officers Cano, Garcia, J.P. Rodriguez, and De Hoyos testified that they did not arrest Rodriguez; (4) the police chief ordered officer Rodriguez not to arrest him; (5) a search warrant did not issue; (6) en route to the police station, officer Garcia did not question Rodriguez; (7) Rodriguez and officer Garcia were unaware of Cano's personal video camera in the unit or that it was recording; (8) officers did not give Rodriguez Miranda warnings or handcuff him; and (9) sobriety tests were not performed at the scene.

As part of our sufficiency analysis, I have reviewed the evidence adduced at trial.  The following is additional evidence adduced at the suppression hearing, viewed in the light most favorable to the trial court's ruling.  See Maxwell,  73 S.W.3d at 281.

Appellant Rodriguez testified that the collision occurred "right at the corner of his house," approximately forty feet distant.  Officer Cano approached him while Rodriguez stood near his wife and "advised my wife he would have to take me in." When taken to the police department, he did not feel free to leave.  Once at the station, he was taken through the entrance used for prisoners and was escorted to a holding room.^[18]  He was not told he could not leave.  Rodriguez testified that after passing the sobriety tests, he was released to the custody of E. Jackson.^[19]  Based on his judicial duties, Rodriguez  was familiar with Miranda warnings.  Rodriguez testified that he knew that, when an accused refuses to take a blood or breath test for alcohol, the individual is immediately arrested. Rodriguez denied he was given the statutory warnings or asked to provide either a breath or blood specimen.^[20]   

E. Jackson testified that, after Rodriguez was released and driven by Jackson to his former residence, officer Rodriguez arrived to perform a field sobriety test. E. Jackson denied that the officer read Rodriguez the statutory DWI warnings or requested  a breath or blood test.  He admitted that the officer did not state Rodriguez was under arrest. 

Officer Rodriguez testified that, when he began reading the statutory warnings, both Rodriguez and E. Jackson interrupted him.  He asked Rodriguez three or four times if he would submit to a breathalyzer test and Rodriguez refused.  Rodriguez also refused to sign the relevant forms. 

Officer Garcia testified that, at the scene of the collision, he looked to his superior De Hoyos for guidance and was instructed to escort Rodriguez to the police department for his safety and for field sobriety tests.  De Hoyos testified that he would not have allowed Rodriguez to leave the scene but did not communicate that to him.  De Hoyos denied Rodriguez was under arrest.  The record shows that the trial court viewed the videotape. Subsequently, the trial court denied the motion to suppress. 

C.  Fourth Amendment and Article 38.23

In his third and fourth issues, Rodriguez asserts his rights under the Fourth Amendment and article 38.23, claiming an illegal arrest and detention.^[21]  In his sixth issue, he argues that the trial court should have suppressed the alleged breath-test refusal because of the illegal arrest and detention.  The State counters that Rodriguez was not unlawfully detained or arrested and, thus, the trial court did not err in denying the motion to suppress. 

D.  Detention Claim

 An accused seeking to suppress evidence on the basis of illegal police conduct bears the burden of proof to rebut a presumption of proper police conduct.  Moreno v. State, 124 S.W.3d 339, 344 (Tex. App.BCorpus Christi 2003, no pet.) (citing McGee v. State, 105 S.W.3d 609, 613 (Tex. Crim. App. 2003)).  A law enforcement officer may conduct a brief investigative detention, or "Terry stop," when he has a reasonable suspicion to believe that an individual is involved in criminal activity.  Terry v. Ohio, 392 U.S. 1, 30-31 (1968); Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Carmouche, 10 S.W.3d at 328. Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity.  Garcia, 43 S.W.3d at 530; Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App.1997) (en banc).  The articulated facts that support a temporary detention must be taken as a whole, and the reasonable suspicion formed must be based on the totality of the circumstances.  Woods, 956 S.W.2d at 38.  Where the initial detention is unlawful, any evidence seized subsequent to such a detention is inadmissible.  Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App.1994) (en banc).  The ultimate standard set forth in the Fourth Amendment is reasonableness.  Cady v. Dombrowski, 413 U.S. 433, 439 (1973).

In this case, officer Cano arrived at the scene of a motor vehicle accident involving Rodriguez as the driver, with the victim trapped underneath Rodriguez's van.  He observed the vehicle had dragged the victim a considerable distance before stopping.  Cano smelled the strong odor of alcohol on Rodriguez's breath, and he observed Rodriguez stagger such that he held on to Cano at one point.  Similarly, sergeant  De Hoyos smelled alcohol on Rodriguez's breath.  Officer Rodriguez observed in plain view an open beer container on the driver's side console in the car and three closed beer containers behind the driver's seat.  Officer Rodriguez also smelled a strong odor of alcohol emanating from the open van. Officer Garcia did not question appellant Rodriguez en route to the police department.  The final field sobriety test was performed approximately an hour and twenty minutes after the accident and subsequent to Rodriguez's leaving the police department.^[22]

I conclude that the officers had specific articulable facts to support the right to investigate a vehicular accident involving serious bodily injury,^[23] and that they were engaged in a community caretaking function, "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." See Cady, 413 U.S. at  446 ("These officers in a rural area were simply reacting to the effect of an accidentBone of the recurring practical situations that results from the operation of motor vehicles and with which local police officers must deal every day."); Maxcey v. State, 990 S.W.2d 900, 903 (Tex. App.BHouston [14th Dist.] 1999, no pet.).  While engaged in a community caretaking function, the officers observed signs symptomatic of an intoxication offense,  including Rodriguez's own condition and the open beer container.  See, e.g., Tex. Pen. Code Ann. _49.031(a)(1) , (b) (Vernon 2003) (a person commits an offense if in knowing possession of an "open container" of an alcoholic beverage in a motor vehicle). I conclude the officers presented specific and articulable facts sufficient to support a reasonable suspicion to detain Rodriguez for further investigation.  See Perales, 117 S.W.3d at 439. 

De Hoyos testified that field sobriety tests were not performed at the scene because of Rodriguez's public position and the crowd at the scene.  Once Rodriguez passed the tests while at the police station, he left. I agree with the State that "the sequence of events is consistent with an investigative detention of a person reasonably suspected of criminal activity to maintain the status quo while obtaining more information."  Terry, 392 U.S. at 20-21.  Thus, I conclude the detention was for investigative purposes and justified.  Accordingly, I would uphold the trial court's ruling on the suppression motion  because the ruling is reasonably supported by the record and is correct on the theory of lawful detention for investigative purposes. See Villarreal, 935 S.W.2d at 138; Perales, 117 S.W.3d  at 438.  I agree with the majority to overrule Rodriguez's fourth issue. 

In his third issue, Rodriguez asserts that the trial court erred in denying his motion to suppress due to unlawful arrest.  He asserts he was deprived of his freedom in a significant way and, thus, was arrested without a warrant or probable cause for an arrest.  Because I conclude, as a matter of law, that the police conduct in this case is consistent with a lawful detention for purposes of investigation, I do not reach Rodriguez's third issue claiming unlawful arrest.  See Tex. R. App. P. 47.1.  Even so, the police conduct is inconsistent with an arrest.  See Dowthitt v. State, 931 S.W.2d 244, 254-55 (Tex. Crim. App. 1996). Each officer in contact with Rodriguez denied he arrested him.  By its ruling, the trial court implicitly rejected Rodriguez's subjective belief that he was arrested.  See Perales, 117 S.W.3d at 437.  Giving proper deference to the trial court on a question of law that turns on credibility of the witnesses, I would uphold the trial court's ruling.  Id.  I would overrule Rodriguez's third issue.

In his sixth issue, Rodriguez argues that the detention at the residence subsequent to his release from the police department was unlawful and, thus, the second refusal to take the breath test should have been suppressed.  The State counters that no detention occurred at the residence, and, even if it did, officer Rodriguez had reasonable suspicion to detain Rodriguez.

The second refusal occurred after the police chief ordered Rodriguez's release.  Evidence shows that the sole basis for the encounter was to confirm that Rodriguez passed a field sobriety test administered by an officer certified in the procedure, officer Rodriguez.  Officer Rodriguez testified that by the time he arrived at the accident scene, Rodriguez was no longer there.  Similarly, by the time officer Rodriguez arrived at the police department, Rodriguez was gone.  Thus, he first contacted Rodriguez at the residence where he went to perform the field sobriety test that only officer Rodriguez was certified to administer. I conclude that, under the totality of the circumstances leading to the encounter, the detention, if any, was in furtherance of the investigative detention and, thus, not unlawful.  Perales, 117 S.W.3d at 437.   I conclude that justification is supported by specific and articulable facts in the record.  Because I conclude that the detention was lawful, I also conclude that the trial court properly denied the motion to suppress Rodriguez's refusal to take the breath tests because they were not products of an illegal detention. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).  I would overrule Rodriguez's sixth issue. 

E.  Article 38.22 Claim

In his fifth issue, Rodriguez argues that the trial court should have suppressed the videotape because (1) he was unlawfully arrested, and (2) he was not given the statutory admonishments in article 38.22.  See Tex. Code. Crim. Proc. Ann. art. 38.22 (Vernon 2005).  The State counters that Rodriguez was neither in custody nor interrogated. 

Article 38.22 provides that no oral statement of an accused made as the result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless he is properly warned.  See Tex. Code Crim. Proc. Ann. art. 38.22(3)(a)(2) (Vernon 2005); see also Miranda v. Arizona, 384 U.S. 436, 479 (1966).  However, article 38.22 does not preclude admission of a statement (1) made by the accused that does not stem from a custodial interrogation, or (2) of a voluntary statement (whether or not the result of custodial interrogation) that has a bearing upon the credibility of the accused as a witness, or (3) of any other statement that may be admissible under law.  Tex. Code Crim. Proc. Ann. art. 38.22(3)(a)(5) (Vernon 2005). Thus, if either the "custodial" or "interrogation" predicates are not met, then article 38.22 does not apply.  Villarreal v. State, 61 S.W.3d 673, 680 (Tex. App.BCorpus Christi 2001, pet. ref'd).  Interrogation includes speech or conduct by the police which the police should know is reasonably likely to elicit an incriminating response from the suspect. Id. (citing Rhode Island v. Innis, 446 U.S. 291, 308 (1980)). 

Implicit in the trial court's ruling is the conclusion that Rodriguez was not under arrest. The officers did not give Miranda warnings because he was not under arrest, and, uniformly and while not acting together, their actions are consistent with no arrest.  Although officer Garcia did not warn Rodriguez while the video camera recorded his statements en route to the police station, Garcia testified Rodriguez was not under arrest and the statements were recorded by equipment that officer Garcia did not know was operating.  By his motion, Rodriguez sought to suppress the videotape.

I have viewed the videotape.  Officer Garcia did not question Rodriguez or engage in conduct reasonably likely to elicit an incriminating response from the suspect.  Id.  Rather, Rodriguez spoke, unprompted by the officer.  I conclude that Rodriguez's statements were not made in response to any interrogation.  See id.  Since Rodriguez's statements were not the product of custodial interrogation, the admission of the statements in evidence is not precluded by article 38.22(5). See Tex. Code Crim. Proc. Ann. art. 38.22(5) (Vernon 2005). 

I further conclude that the trial court's implicit ruling that Rodriguez was not under arrest is supported by the record and that his videotaped statements were not the result of interrogation.  Accordingly, neither the "custodial" nor "interrogation" predicates are met.  Thus, article 38.22 does not apply.  See Villarreal, 61 S.W.3d at 680.  For these reasons, I would overrule Rodriguez's fifth issue.

F. Transportation Code Violation Claim

In his seventh issue, Rodriguez argues that the trial court should have suppressed the breath-test refusal at the residence because officer Rodriguez did not give him the warnings mandated by section 724.015 of the Texas Transportation Code. See Tex. Transp. Code Ann. _ 724.015 (Vernon Supp. 2004-05).^[24]  The State counters that Rodriguez was not under arrest when the refusal occurred as required by section 724.015, and his refusal was admissible under section 724.061 of the transportation code.^[25]  Tex. Transp. Code Ann. _ 724.061 (Vernon 1999).

The purpose behind section 724.015 is "to ensure that a person who refuses to give a requested specimen does so with a full understanding of the consequences." Nebes v. State, 743 S.W.2d 729, 730 (Tex. App.BHouston [1st Dist.] 1987, no pet.).

Rodriguez testified he was aware of arrest procedures and statutory warnings, and at one point, stated, "On cases like this, you arrest a person if he refuses a breathalyzer, you arrest them right there on the spot."   At the motion to suppress hearing, defense counsel argued that the refusal to take the breath test should be suppressed, under Tex. Dep't. of Pub. Safety v. Watson, 945 S.W.2d 262, 266 (Tex. App.BHouston [1st Dist.] 1997, no writ).  Watson states, in part, that provisions of the statute apply "postarrest."  Id. On appeal, Rodriguez bases his argument on grounds that the statutory warnings are required "if a person is arrested."

I have concluded that Rodriguez was not under arrest when officer Rodriguez contacted him. Officer Rodriguez asked Rodriguez "three or four times" to submit to a breathalyzer test and he refused. Rodriguez also refused to sign the relevant forms.  Officer Rodriguez testified that Rodriguez interrupted when he attempted to read the statutory warnings.

Considering the totality of circumstances, I conclude that the trial court's implicit ruling that the transportation code was not violated, on the theory that Rodriguez was not under arrest, is supported by the record.  Further, the trial court could have reasonably concluded that, by virtue of his admitted professional experience, Rodriguez had judicial notice of the consequences of the test refusal and, thus, the purpose of section 724.015 was met. See Nebes, 743 S.W.2d at 730.  Similarly, the trial court could have reasonably concluded that officer Rodriguez substantially complied with section 724.015 by asking Rodriguez "three or four times" to test and Rodriguez expressly refused, on grounds that Rodriguez, by virtue of his admitted experience, was aware of the consequences of his refusal.  Finally, the trial court could have reasonably concluded that the test refusal was relevant evidence admissible under rule 402 of the Texas Rules of Evidence or section 724.061 of the transportation code.  See Tex. Transp. Code ' 724.061 (Vernon 1999); Tex. R. Evid. 402; Montgomery v. State,  810 S.W.2d 372, 391 (Tex. Crim. App.1990) (en banc) (appellate court should not reverse a trial court's evidentiary ruling that is "within the zone of reasonable disagreement"). 

Accordingly, I would uphold the trial court's ruling because it is reasonably supported by the record and is correct on various theories of law applicable to the case.  Villarreal, 935 S.W.2d at 138.  I would overrule Rodriguez's seventh issue.

III. EXCLUSION OF EVIDENCE

In his eighth issue, Rodriguez argues that the trial court abused its discretion by excluding from evidence at trial two photographs he intended to use to demonstrate political pressure to arrest him, a mayoral candidate.  The photographs depict a wheelchair and a motorcycle at a polling place.^[26]  The State counters that the tactics used by Rodriguez's political opponent were not relevant to the determination of guilt.

A.  Standard of Review

A trial court's admission or exclusion of evidence is reviewed under an abuse of discretion standard.  Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Salazar v. State, 38 S.W.3d 141, 153‑54 (Tex. Crim. App. 2001).^[27]  A trial judge is given wide discretion when deciding admissibility of photographs. Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (en banc).  If elements of a photograph  are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if its emotional and prejudicial aspects substantially outweigh its helpful aspects.  Erazo v. State, 144 S.W.3d 487, 491‑92 (Tex. Crim. App. 2004).

B.  The Evidence

Outside the jury's presence, Rodriguez testified that he defeated the mayoral incumbent and proceeded to a run-off election.  He took the two photographs on the run-off election day.  The photographs are black and white, and show a wheel chair with a sign on it that states, "[presumably, the opponent's name] helps not . . .[illegible]."  The trial court ruled the photographs inadmissible on grounds that they were not relevant, pronouncing, in part, "I don't want to politicize this case.  What happened that night is going to stay what happened that night." 

C.  Analysis

A photograph is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."  Tex. R. Evid. 401; see also Tex. R.  Evid. 402, 403.  I conclude that the photographs contain no elements  that would be helpful to the jury in reaching its decision on Rodriguez's culpability.  Erazo, 144 S.W.3d at 491‑92.  I further conclude that the emotional and prejudicial aspects of the photographs substantially outweigh any perceived helpful aspects.  Id.  Accordingly, the trial court's ruling to exclude the photographs was within the zone of reasonable disagreement.  See Montgomery, 810 S.W.2d at 379.  Thus, the trial court did not abuse its discretion.  Id.  I would overrule Rodriguez's eighth issue.

IV.  MOTION FOR NEW TRIAL

In his ninth, tenth, and eleventh issues, Rodriguez argues the trial court abused its discretion by denying his motion for new trial because (1) the State failed to disclose a witness, officer Patricia Decanini, who had evidence favorable to the defense; (2) the newly discovered evidence would have resulted in a different outcome; and (3) defense counsel was ineffective by failing to discover officer Decanini's testimony before trial.  The State counters that Decanini's testimony was merely collateral or impeaching of other evidence and, thus, Rodriguez did not show a reasonable probability that the result would have been different.

A.  Standard of ReviewBDenial of a Motion for New Trial

In criminal cases, there is no common law right to a new trial. Banks v. State, 186 S.W. 840, 841 (1916).  The right is purely statutory.  Id.; see Drew v. State, 743 S.W.2d 207, 223 (Tex. Crim. App. 1987) (en banc); see also Tex. R. App. P. 21.2.  We review the grant or denial of a motion for new trial under an abuse of discretion standard.  See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995) (en banc).   We may not substitute our judgment for that of the trial court, Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim App. 1992) (en banc), and credibility of the witnesses is primarily a determination for the trial court.  Hoyos v. State, 951 S.W.2d 503, 511 (Tex. App.BHouston [14th Dist.] 1997), aff'd, 982 S.W.2d 419 (Tex. Crim. App. 1998).  As finder of fact, the trial court may accept or reject any or all of the testimony given by State or defense witnesses.  Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978); see also Guzman, 955 S.W.2d at 89.  Thus, we are authorized to: (1) apply a deferential standard of review to the trial court's resolution of historical facts; and (2) may rely upon implied findings of fact that are supported by the record to uphold the trial court's ruling, even when the trial court is not faced with expressly conflicting affidavits or testimony.  Charles v. State, 146 S.W.3d 204, 206 (Tex. Crim. App. 2004); Villarreal v. State, 79 S.W.3d 806, 811-12 (Tex. App.BCorpus Christi 2002, pet. ref'd).

B.  The Brady Claim

In his ninth issue, Rodriguez asserts that the Brady violation requires a new trial.  See Brady v. Maryland, 373 U.S. 83, 87-88 (1963).  Specifically, he complains the State was required to disclose to him the existence of officer Decanini, who, in essence, would testify that officer Rodriguez (1) destroyed sergeant De Hoyos's police report favorable to Rodriguez, and (2) stated he was going "to get" Rodriguez. 

1.  The Law

Prosecutors are prohibited from suppressing facts or secreting witnesses who may establish the innocence of the accused.  Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon 2005).   A defendant in a criminal case must be granted a new trial when evidence tending to establish the defendant=s innocence has been intentionally withheld, thus preventing its production at trial.  Tex. R. App. P. 21.3(e).  A Brady violation occurs if (1) the State failed to disclose evidence, regardless of the prosecution=s good or bad faith; (2) the withheld evidence is favorable to the defendant; and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.^[28]  Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002); Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992) (en banc).  The prosecution has no duty to turn over evidence not in its possession or not known to exist.  State v. Blanco, 953 S.W.2d 799, 802-03 (Tex. App.BCorpus Christi 1997, pet. ref=d) (citing Hafdahl v. State, 805 S.W.2d 396, 399 n.3 (Tex. Crim. App. 1990) (en banc)). Although the prosecution has no duty to turn over evidence not in its possession or not known to exist, the prosecution does have a duty to learn of any favorable evidence known to others acting in the case on the State=s behalf, including the police.  Blanco, 953 S.W.2d at 802-03 (citing Kyles v. Whitley, 514  U.S. 419, 419 (1995)).

Our review of a prosecutor=s alleged failure to disclose exculpatory evidence requires us to:  (1) employ a materiality standard rather than a constitutional harmless-error standard in evaluating the evidence; and (2) determine the materiality of the evidence in light of all other evidence properly introduced at trial. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002).  We consider any adverse effect that the prosecutor=s non-disclosure might have had on the preparation or presentation of the accused=s case.  Thomas, 841 S.W.2d at 405.  We assess the possibility that an adverse effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post‑trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor=s failure to disclose.  Id. To make this determination, we examine the alleged error in the context of the overall strength of the State=s case.  Id.

2.  The Evidence

Rodriguez timely filed an amended motion for new trial asserting, in part, a Brady violation and newly discovered evidence.^[29] The trial court convened an evidentiary hearing. 

Officer Patricia Decanini testified that, post trial, Rodriguez contacted her about a missing report, which was compiled by sergeant De Hoyos, signed by officer Garcia, and showed Rodriguez passed the sobriety test.^[30]  Because she recalled the report, she compiled the motion for new trial affidavit, which was admitted in evidence.  Decanini testified that De Hoyos gave her a handwritten report and she offered to type it for him to make it "professional."^[31]  The report indicated that Rodriguez had passed the field sobriety test.  Decanini testified that the handwritten report was signed by officer Garcia, indicating that he concurred with the opinions in the report.  On cross-examination, she conceded the handwritten report did not have language stating that Garcia concurred with the report, and that, because of his superior rank, and because it was not common practice in the police department, De Hoyos did not need Garcia's signature or approval.  After Decanini finished typing the report, she gave it to De Hoyos and he signed it.  She gave the report to officer Rodriguez, who made a derogatory comment about De Hoyos and and threw the report away.  Decanini further testified that officer Rodriguez "always had a grudge against" Rodriguez.  Officer Rodriguez told her that he had worked the case, had a good case, and was going to "[expletive] over the judge."  Decanini admitted that none of the police reports generated by any officer included her name.  She also admitted she was not involved in the motor vehicle accident investigation. 

Rodriguez's lead counsel at trial testified that co-counsel filed a Brady motion, which the trial court granted.^[32]  The State's witness list did not include Decanini.  Even so, trial counsel testified, "I didn't rely on their witness list. I went out and did my own work." He did not receive the report. Trial counsel learned from grand jury testimony that a report may have been destroyed.  Referring to a report signed by both De Hoyos and Garcia, trial counsel testified he "asked if the State had in its possession that alleged report that was destroyed."  He learned about Decanini the night before the motion for new trial hearing through conversing with current defense counsel.  Trial counsel recalled De Hoyos's testimony at trial regarding an original report he prepared and officer Garcia signed.  He further recalled testimony that officer Rodriguez claimed he did not have De Hoyos's original report, and so De Hoyos compiled a supplemental report.  Trial counsel recalled that officer Garcia denied at trial that he signed a report compiled by De Hoyos.  Decanini's testimony, in his opinion, had impeachment value.  When asked if he would have called her as a witness had he known about her, counsel answered, "If the State had . . . I would have, yes."  The following colloquy ensured:

[Trial counsel]: I believe that there should have been some due diligence in trying to locate the original report.

[Post-trial defense counsel]:  Right. And as the attorney in charge, you were never given this information regarding officer Decanini; is that correct?

[Trial counsel]: I don't believe they possessed it, and I wasn't given it.  I believe if they had possessed it, I would have been given it. 

On cross-examination, trial counsel testified that grand jury testimony from E.  Jackson was that a report was "destroyed, altered or missing."  Before trial, counsel knew: (1) about "an original report signed by both Mr. Flavio Garcia and Sergeant De Hoyos;" (2) officer Garcia testified he did not remember ever signing a report; (3) De Hoyos testified that he had prepared the original report; (4) De Hoyos did not testify that Decanini prepared it. Finally, when asked if the issue regarding an original report was addressed to the jury, trial counsel responded, "The issue about an original report, yes."

The trial court stated he presided over the jury trial and remembered the testimony.^[33] The trial court denied the motion for new trial.  

3.  Analysis

Rodriguez argues that the State failed to disclose Decanini as a potential witness.  Evidence at trial showed that De Hoyos testified he prepared an original report and that it was missing.  The defense thoroughly cross-examined De Hoyos, officer Garcia, and officer Rodriguez about a missing report.  At trial, officer Rodriguez denied he saw another report by De Hoyos, and officer Garcia denied he signed a report generated by De Hoyos.  Decanini admitted that the report she typed did not contain language that officer Garcia concurred with the report.  At trial, officer Rodriguez provided favorable testimony that Rodriguez passed the sobriety test.

Evidence at the motion for new trial hearing did not establish that the State knew about Decanini or had reason to believe that she was a potential witness.  See Zule v. State, 802 S.W.2d 28, 33 (Tex. App.BCorpus Christi 1990, pet. ref'd).  Whatever impeachment value Decanini's testimony might have had, other witnesses testified and were cross-examined extensively about the missing report and its contents and the replacement report which did not include officer Garcia's signature.

In light of the other evidence introduced at trial, I conclude that Rodriguez did not meet his burden of establishing the materiality of evidence of the destruction of De Hoyos's report, the basis for Decanini's testimony.  See Hampton, 86 S.W.3d at 605.  Similarly, I also conclude that Rodriguez did not meet his burden to show a reasonable probability that the result of the proceeding would have been different if the identity of Decanini  as a potential witness, or her proffered testimony, had been disclosed earlier to the defense.  See Ex parte Richardson, 70 S.W.3d at 870.  I would overrule Rodriguez's ninth issue.

C.  Newly Discovered Evidence

By his tenth issue, Rodriguez argues that the State's failure to disclose the newly discovered evidence relating to Decanini mandates a new trial.  In particular, he asserts that Decanini's testimony would have shown that officer Garcia in fact agreed that Rodriguez "passed all the exams and that [officer] Rodriguez was suppressing it."  The State responds that the trial court properly denied the motion.

1.  The Law

A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.  Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon Supp. 2004-05); see Brady, 373 U.S. at 87.  The party who moves for a new trial based on newly-discovered evidence must satisfy a four‑part test: (1) the newly discovered evidence was unknown or unavailable to the accused at the time of his trial; (2) the accused's failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in another trial. See Keeter v. State, 74 S.W.3d 31, 36‑37 (Tex. Crim. App. 2002); Drew, 743 S.W.2d at 226; Villarreal, 79 S.W.3d at 814.

2.  Analysis

Rodriguez has not demonstrated that this "new" evidence of a missing report was unknown to him before the trial.  See Villarreal, 79 S.W.3d at 814.  Trial counsel testified at the motion for new trial hearing that, based on the record of the grand jury proceedings, he knew there was a missing report and discussed this with the prosecutor.  During the motion to suppress hearing, De Hoyos testified about the missing report.  Trial counsel also further testified that he did not rely on the State=s witness list and did his own work.  He further testified that he learned about Decanini the night before the motion for new trial hearing.  I have already concluded that whatever impeachment value derived from the information Decanini proffered, other witnesses testified and were cross-examined extensively on the same subject at trial.  In light of the other evidence introduced at trial and the evidence adduced at the motion for new trial hearing, I conclude that the evidence was not "newly discovered," but instead existed before trial, both through De Hoyos's pretrial testimony and through grand jury testimony.  This was acknowledged by trial counsel.  See Villarreal, 79 S.W.3d at 814. Further, Rodriguez did not establish (1) the failure to discover the "new" evidence was not due to a want of diligence on his part (see id.; see also Drew, 743 S.W.2d at 226); or (2) the "new evidence" was material; or (3) it was not merely cumulative, corroborative, collateral, or impeaching.  Id. I would overrule Rodriguez's tenth issue.

D.  Effective Assistance of Counsel

In his eleventh issue, Rodriguez argues that trial counsel was ineffective because he did not discover Decanini and her proffered evidence before trial. 

In reviewing an ineffective assistance of counsel claim, we evaluate the effectiveness of counsel under the two‑pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984).  See Hernandez v. State, 988 S.W.2d 770, 774 (Tex. Crim. App. 1999).  First, the defendant must show that his counsel's representation fell below an objective standard of reasonableness.  Strickland, 466 U.S. at 688.  To prove this deficiency in representation, the defendant must demonstrate that his counsel's performance deviated from prevailing professional norms.  Strickland, 466 U.S. at 688; McFarland v. State, 845 S.W.2d 824, 842‑43 (Tex. Crim. App. 1992).  Second, the defendant must show prejudice.  Strickland, 466 U.S. at 687.  This requires the defendant to show that there is a reasonable probability that but for his counsel's unprofessional errors the result of the proceeding would have been different.  Id. at 694.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Id. The failure to satisfy one prong of the Strickland test negates a court's need to consider the other. See id. at 697.  An appellant bears the burden of proving by a preponderance of the evidence that his counsel was ineffective.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

In his motion for new trial and at the motion for new trial hearing, Rodriguez did not assert that his trial counsel was ineffective.  I have already concluded that Rodriguez has not shown that the outcome of the trial would have been different had Decanini=s proffered evidence been discovered.  I similarly conclude that, on this record, Rodriguez has not shown that, but for the complained of error,  the result of the trial would have been different.  Accordingly, Rodriguez has not met the first Strickland prong. See Strickland, 466 U.S. at 688; see also Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  I would overrule Rodriguez=s eleventh issue.

V. CONCLUSION

Having overruled Rodriguez=s eleven issues, I concur with the majority's decision to affirm.

ERRLINDA CASTILLO

                       Justice

Publish.

Tex. R. App. P. 47.2(b).

Concurring Opinion delivered and filed

this the 7th day of April, 2006.

---

^[1]  See Tex. Pen. Code Ann. ' 49.07(a)(1) (Vernon 2003).

^[2] After the State rested its case during the culpability phase, the trial court granted Rodriguez's motion for acquittal as to one count of aggravated assault. 

^[3] By his first and second issues, Rodriguez argues legal and factual insufficiency of the evidence.  By his third and fourth issues, he asserts the trial court erred in denying his motion to suppress based on an unlawful arrest and unlawful detention.  By his fifth, sixth, and seventh issues, he argues the trial court erred in not suppressing the videotape and the breath test.  By his eighth issue, he argues the trial court erred by excluding relevant evidence.  By his ninth and tenth issues, Rodriguez argues the trial court erred by denying his motion for new trial based on Brady violations and newly discovered evidence. By his eleventh issue, he asserts that his trial counsel was ineffective.

^[4] Perez testified she had driven motorcycles for approximately thirty-seven years, and  doing so was a way of life for her family, a hobby, and a stress reliever. 

^[5] Cano testified the brand of beer in the front of the van differed from the brand of beer located in the rear.

^[6] Cano explained that he installed his own camera on the unit dashboard for his personal safety and for training purposes. 

^[7] Evidence showed that witnesses with the last name of Rodriguez are not related. 

^[8] The testimony of an officer that a person is intoxicated provides sufficient evidence to es-tablish the element of intoxication. Gruber v. State, 812 S.W.2d 368, 370 (Tex. App.BCorpus Christi 1991, pet. ref=d) (citing Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) and Whisenant v. State, 557 S.W.2d 102, 105 (Tex. Crim. App. 1977)).

^[9] The tests included the horizontal gaze nystagmus, one leg balance, and heel‑to‑toe tests.  

^[10] When asked why his police report showed an "hour and twenty minutes," officer Rodriguez explained he was engaged in discussions with Rodriguez and Jackson.  Both Rodriguez and Jackson testified that, when officer Rodriguez arrived, they asked him about the victim=s condition. 

^[11] Rodriguez does not contest the serious bodily injury element.  The penal code defines"serious bodily injury" as an "injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ."  Tex. Pen. Code Ann. _ 49.07(b) (Vernon 2003).   

^[12] As grounds, the motion requested the trial court to suppress "all evidence seized as a result of the arrest of Defendant and the search of Defendant as well as all statements, either written or oral, made after such arrest."

^[13] Article 38.22 governs the use of oral statements of the accused made as the result of custodial interrogation.  Tex. Code Crim. Proc. Ann. art. 38.22(3) (Vernon 2005). 

^[14] Article 38.23(a) states, in relevant part, "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).

^[15] Rodriguez did not object when the State reintroduced the suppression issues and, indeed, fully participated in the relitigation of the issues in his cross‑examination of the State's witnesses.

^[16] Defense counsel conceded during argument in the suppression hearing that "this isn't a standard protocol case."  The trial court responded, "Because it involves a judge." 

^[17] De Hoyos testified at trial that, because of Rodriguez's position as a municipal judge, he did not want to subject him to sobriety testing at the scene in front of bystanders. 

^[18] However, officer Garcia testified that Rodriguez walked around freely and, when De Hoyos arrived, Rodriguez met with De Hoyos and the police chief in De Hoyos' office. 

^[19] By contrast, at trial, Rodriguez testified he was released and then asked Jackson, who was outside with Rodriguez's son, for a ride home.

^[20] The Texas Transportation Code provides that a person arrested for DWI must be informed that, if the person is 21 years of age or older, submits to the taking of a specimen, and the specimen shows that the person had an alcohol concentration of a level specified by Chapter 49 of the Texas Penal Code, then the person's license to operate a motor vehicle will automatically be suspended for not fewer than 90 days.  See Tex. Transp. Code Ann. ' 724.015(3) (Vernon Supp. 2004‑05).  A person must also be warned that two specific consequences will result from a refusal to submit to a breath test: (1) the person's driver's license will be suspended automatically for not fewer than 180 days; and (2) evidence of the refusal is admissible against the person in court.  Tex. Transp. Code Ann. ' 724.015(1), (2) (Vernon Supp. 2004‑05).

^[21] The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV; see also Tex. Code. Crim. Proc. Ann. art. 38.23 (Vernon 2005).

^[22] See Nenno v. State, 970 S.W.2d 549, 557 (Tex. Crim. App. 1998), overruled on other grounds, State v. Terrazas, 4. S.W.3d 720, 725 (Tex. Crim. App. 1999) (en banc) (noting that a one hour interview is a short time period).

^[23] See Tex. Pen. Code Ann. _ 49.07(b) (Vernon 2003). 

^[24] Texas Transportation Code section 724.011 states:

If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under section 106.41, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance.

Tex. Transp. Code Ann. ' 724.011 (Vernon 1999).

^[25] Section 724.061 states:

A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person's trial.

Tex. Transp. Code Ann. ' 724.061 (Vernon 1999).

^[26] The defense theory was that Rodriguez was charged for political reasons, not because he was guilty, and "someone took advantage and tried to politicize a tragic event."  

^[27] An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles.  Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990).  In other words, an abuse of discretion occurs only when the trial court's decision is so wrong as to lie outside that zone within which reasonable persons might disagree.  Id.

^[28] Favorable evidence is any evidence, if disclosed and used effectively, that may make the difference between conviction and acquittal.  Thomas v. State, 841 S.W.2d  399, 404 (Tex. Crim. App. 1992).  Favorable evidence includes both exculpatory and impeachment evidence.  Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000); Thomas, 841 S.W.2d at 404.  Exculpatory evidence is that which tends to justify, excuse, or clear the accused of  fault or guilt.  Id. Impeachment evidence is that which disputes, disparages, denies, or contradicts a witness's testimony.  Id.  Evidence is material if it creates a probability sufficient to undermine confidence in the outcome of the proceeding. Id.  An appellant must also show that the State's nondisclosure or tardy disclosure prejudiced the defense.  Little v. State, 991 S.W.2d 864, 867 (Tex. Crim. App. 1999). To show prejudice, an appellant must show a reasonable probability that the result of the proceeding would have been different had the State timely disclosed the evidence to the defense.  Id. at 866. 

^[29] The time for filing motions for new trial and amended motions for new trial in criminal cases is presently governed by Texas Rule of Appellate Procedure 21.4.  See Tex. R. App. P. 21.4.  Under ordinary statutory construction, we apply the plain meaning of the words contained in the rule unless such application would lead to an absurd result. State v. Hardy, 963 S.W.2d 516, 519 (Tex. Crim. App. 1997).  The rule does not authorize an amendment of a motion after the thirty days have expired, even with leave of court.  Id.; see also Drew v. State, 743 S.W.2d 207, 222-23 (Tex. Crim. App. 1987) (en banc) (construing former rule).  Judgment below was entered on June 28, 2002.  Rodriguez's amended motion for new trial, filed on July 29, 2002, was timely because the thirtieth day, July 28, fell on a Sunday.  

^[30] At the hearing, Decanini recanted the following statement in her motion for new trial affidavit:  "I was advised by Judge Rodriguez [appellant] about some reports that were never brought up on the last trial he had . . . ."  She later testified that everything in the affidavit was correct. 

^[31] Decanini had been employed with the police department three months in November 2001,  admittedly learning departmental policies and procedures during that time.   Her duties at the time were to assist in the preparation of reports.

^[32] He testified that three attorneys represented Rodriguez during trial.  Different counsel represented Rodriguez during post-trial proceedings.

^[33] During argument at the motion for new trial hearing, the trial court addressed Rodriguez's post-trial counsel stating, A[y]ou weren't here at the time of trial, but I can assure you it was exhausted to no end, almost to the point of having nausea regarding a missing report. If you'll look at the transcript of the trial B."  Similarly, we may take judicial notice of its records in the same, or related proceedings involving the same or nearly the same parties.  Huffman v. State, 479 S.W.2d 62, 68 (Tex. Crim. App. 1972).