Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00487-CR
Dennis Lee GIDDINGS,
Appellant
v.
The STATE of Texas,
Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 9787
Honorable Kirsten Cohoon, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Irene Rios, Justice
Lori I. Valenzuela, Justice
Velia J. Meza, Justice
Delivered and Filed: June 24, 2026
AFFIRMED
In three issues, appellant Dennis Lee Giddings challenges his conviction for driving while
intoxicated, third offense or more. We overrule Giddings’s appellate issues and affirm the
judgment of conviction.
BACKGROUND
On July 4, 2024, Giddings was involved in an automobile collision with a City of Boerne
firetruck. Giddings maintained that the firetruck hit him, while the truck’s driver testified that
04-25-00487-CR
Giddings entered his lane and collided with the back of the truck. The police officers who
responded to the collision believed Giddings was intoxicated, and they arrested him. A Kendall
County grand jury indicted him for driving while intoxicated, third or more.
After hearing the evidence presented at trial, the jury found Giddings guilty as charged.
The jury also found the State’s allegations that Giddings had two prior felony convictions to be
true, and it assessed his punishment at 50 years’ confinement. The trial court subsequently signed
a judgment of conviction that was consistent with the jury’s verdict. Giddings now appeals.
ANALYSIS
Alleged Discovery Violation
In his first issue, Giddings argues the State violated its discovery obligations regarding
testimony from Matthew Gregory, the firefighter and EMT who was driving the firetruck and who
tried to assess Giddings at the scene. Giddings contends that the State had an obligation to disclose
that Gregory’s trial testimony would include details not recited in his written EMT report.
Standard of Review and Applicable Law
We review a trial court’s rulings on pretrial discovery matters and its evidentiary rulings
under an abuse of discretion standard. State v. Heath, 696 S.W.3d 677, 688 (Tex. Crim. App.
2024); Sopko v. State, 637 S.W.3d 252, 256 (Tex. App.—Fort Worth 2021, no pet.). A trial court
does not abuse its discretion if its ruling is within the zone of reasonable disagreement. Heath, 696
S.W.3d at 688–89. Under this standard, we may not substitute our judgment for the trial court’s.
Id. at 689.
Article 39.14 of the Texas Code of Criminal Procedure, also known as the Michael Morton
Act, provides:
as soon as practicable after receiving a timely request from the defendant the state
shall produce and permit the inspection and the electronic duplication, copying, and
-2-04-25-00487-CR
photographing, by or on behalf of the defendant, of any offense reports, any
designated documents, papers, written or recorded statements of the defendant or a
witness, including witness statements of law enforcement officers but not including
the work product of counsel for the state in the case and their investigators and their
notes or report, or any designated books, accounts, letters, photographs, or objects
or other tangible things not otherwise privileged that constitute or contain evidence
material to any matter involved in the action and that are in the possession, custody,
or control of the state or any person under contract with the state.
TEX. CODE CRIM. PROC. art. 39.14(a). As used in Article 39.14, material “means having a logical
connection to a consequential fact and is synonymous with relevant[.]” Watkins v. State, 619
S.W.3d 265, 290 (Tex. Crim. App. 2021) (internal quotation marks omitted). Article 39.14 thus
grants criminal defendants “a general statutory right to discovery . . . beyond the guarantees of due
process.” Id. at 291.
Application
On appeal, Giddings argues the State violated its discovery obligations under the Fifth and
Fourteenth Amendments of the United States Constitution, Brady v. Maryland, 1 and Article 39.14.
At trial, however, Giddings asserted only an Article 39.14 objection to Gregory’s testimony. He
therefore did not preserve his Fifth and Fourteenth Amendment or Brady complaints for our
review. See TEX. R. APP. P. 33.1(a)(1); Keeter v. State, 175 S.W.3d 756, 761 (Tex. Crim. App.
2005).
In his Article 39.14 complaints, Giddings does not argue that the State failed to disclose
Gregory’s written report or his identity as a testifying witness. Rather, he complains that Gregory
testified to details not contained in the written report the State disclosed to Giddings.
Gregory testified without objection that after the collision, he noticed that Giddings’s
vehicle came to rest “a substantial distance,” which he estimated to be 1,180 feet, away from the
1
373 U.S. 83 (1963).
-3-04-25-00487-CR
firetruck and the collision site. He explained that the distance between the two vehicles led him to
believe “[t]hat there was a high rate of speed involved from [Giddings’s] vehicle to have slid that
far or there was just complete lack of control of the vehicle.” He further testified that as he was
trying to assess Giddings’s physical condition after the collision, Giddings swore at him, ignored
his instructions to stay seated until further assistance arrived, and “swatted [his hand] away” when
he tried to help Giddings out of his crashed vehicle. Gregory also testified that he noticed “a strong
smell of alcohol coming from the vehicle.”
At that point, Giddings objected to Gregory’s testimony:
Objection, Your Honor. We have a report in this case. We don’t have any
information related to the testimony that’s there now. . . . It’s a Michael Morton
violation. We don’t have any evidence related to this.
Giddings confirmed that his objection was limited to the testimony described above and Gregory’s
statements that he estimated Giddings’s vehicle came to rest approximately 1,180 feet past the
collision site.
During a conference outside the jury’s presence, the State initially represented, “The
majority of the testimony that’s coming out are things that I’m hearing for the first time.” Giddings
responded, “[W]e are of the position that [the State] knew what the answers to these questions
were, knew that that was going to be part of this. They surely rehearsed that. And none of that
information was made available to us before this moment.”
As the conference continued, the State read portions of Gregory’s report into the record:
It took a minute to get down to the other vehicle involved. Once there I found a 50-to 60-year-old male sitting in his car. I had introduced myself and asked if he was
okay or if he was hurt. His immediate response was to begin cursing me out and
accusing me of hitting him. I again asked him if he was okay or if he was hurt. He
again responded with profanity and accusing me of swerving into his lane and
hitting him. I advised him law enforcement would determine who’s at fault and that
all I cared about was that he was okay. I persisted to inquire if he was hurt with no
-4-04-25-00487-CR
success. During this exchange, I could smell a very strong odor of alcohol coming
from the vehicle.
After the State read Gregory’s report into the record, the trial court then overruled Giddings’s
Article 39.14 objection, the jury returned to the courtroom, and Gregory continued with his
testimony.
The colloquy described above shows that Gregory’s written report included his
recollections about Giddings’s demeanor and the smell of alcohol. As a result, the trial court did
not act outside the zone of reasonable disagreement by concluding the State satisfied any
obligation it owed to disclose those portions of Gregory’s testimony. See Ferrer v. State, 548
S.W.3d 115, 121 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d).
The portion of Gregory’s report that the State read into the record did not include Gregory’s
estimate of the distance between the two vehicles or his testimony about Giddings refusing his
offer of assistance. We will assume without deciding that those details constituted “material”
evidence. See TEX. CODE CRIM. PROC. art. 39.14(a); Watkins, 619 S.W.3d at 290. We note,
however, that our sister court in Eastland recently rejected an Article 39.14 argument like the one
Giddings presents here. See generally Humphries v. State, Nos. 11-22-00271-CR & 11-22-00272-CR, 2024 WL 3528959 (Tex. App.—Eastland July 25, 2024, no pet.) (mem. op., not designated
for publication).
In Humphries, the appellant was charged with burglary of a habitation with intent to
commit aggravated assault. Id. at *1. The State alleged that he entered a home while its occupants
slept “with ‘the intention to hurt’” one of the occupants, John. Id. at *1–2. The appellant entered
an open plea of guilty to a lesser-included offense, and the trial court accepted the plea pending
the presentation of evidence. Id. at *1.
-5-04-25-00487-CR
During the presentation of evidence, John testified that he saw the appellant in the home
and heard a noise like “the sound of a ‘gun jamming’” that made him believe the appellant was
carrying a firearm. Id. at *2. John’s parents, Wylie and Telise, testified that John woke them and
told them, “‘[t]here’s somebody in the house with a gun.’” Id. at *3. A deputy testified that John,
Wylie, and Telise “had told him ‘about seeing the subject with the gun.’” Id. at *2. However, a
police investigator testified that his written narrative “did not include the statements from Wylie
and Telise about John hearing a firearm jamming or communicating to each other that there was
an intruder with a gun.” Id. at *3. After hearing this testimony, “[a]ppellant’s trial attorney
suggested that he was not informed that John told Wylie and Telise that there was a person with a
gun in the house,” and the trial court sua sponte “inquired about any potential Article 39.14 issues.”
Id. “The State responded that the information from John was disclosed to Appellant before his
open plea, but the information from Wylie and Telise was not known by the State prior to their
testimony.” Id.
The trial court ultimately “determined that the State had violated its discovery obligation
as to the testimony of John,” and it excluded his statement. Id. However, it also “stated that it
would not exclude Wylie’s and Telise’s testimony because it had no evidence that the State was
aware of the additional information prior to their testimony.” Id. The court of appeals held the trial
court did not abuse its discretion because “the State does not have an obligation to disclose
information that it was never provided.” Id. at *7.
Here, Giddings argues that Gregory’s testimony included “facts and information outside
his written report from the night.” At trial, he argued that the State must have known that Gregory’s
testimony would go outside the details included in his written report because “You’re asking the
questions. You must know the answers.” But the record does not contain any evidence that the
-6-04-25-00487-CR
State knew Gregory planned to testify about the distance between the two vehicles or that Giddings
swatted his hand away when he offered assistance. To the contrary, the State affirmatively
represented below that it, like Giddings, was hearing those details “for the first time.” Under these
circumstances, the trial court did not abuse its discretion by overruling Giddings’s Article 39.14
objection. See id. at *5 (concluding admission of Wylie’s and Telise’s testimony was “not
offensive to the State’s responsibilities under Article 39.14 and therefore cannot stand as error that
denied Appellant any right to which he was legally entitled”).
But even if we assume the trial court erred, that error was harmless. A violation of Article
39.14 is non-constitutional error that will only support reversal if it “had a substantial and injurious
effect or influence in determining the jury’s verdict.” Fortuna v. State, 665 S.W.3d 861, 869 (Tex.
App.—Houston [14th Dist.] 2023, no pet.); see also TEX. R. APP. P. 44.2(b). “If we have a fair
assurance from examination of the record as a whole that the error did not influence the jury, or
had but a slight effect, we will not overturn the conviction.” Fortuna, 665 S.W.3d at 869. “In
making this determination, we consider (1) the character of the alleged error and how it might be
considered in connection with other evidence; (2) the nature of the evidence supporting the verdict;
(3) the existence and degree of additional evidence indicating guilt; and (4) whether the State
emphasized the error.” Id.
Here, Gregory’s testimony about the post-collision distance between the firetruck and
Giddings’s vehicle was corroborated by Trooper Robert Pennington, who testified that he
personally observed both vehicles’ positions at the scene. Like Gregory, he explained why the
distance stood out to him:
The firetruck remained relatively close to the area of impact, which indicated to me
a normal reaction. They experienced the impact and brought the vehicle to a stop.
And the red sedan [Giddings’s vehicle] was a significant distance away from [sic]
further down continuing in the direction it was coming from the point of impact,
-7-04-25-00487-CR
which told me there was either a delayed response to the impact or a failed response
to the impact, that the vehicle was not intended to stop.
And, like Gregory, Pennington testified that he “observed the odor of alcohol emitting from
[Giddings’s] person.” He further testified that Giddings was “agitated,” “[h]is speech was
somewhat inappropriate,” and his “behavior seemed altered compared to the vast majority of
people [Pennington had] interacted with.” Similarly, Deputy Daniel Zimardo testified that he could
“smell the odor of alcohol on” Giddings, his movements were uncoordinated, and he was
“evasive,” “uncooperative,” and “antagonistic” with the investigating officers. Finally, both
Pennington and Zimardo testified that Giddings’s speech was slurred and he was using his car to
support his weight when they spoke to him.
Pennington’s and Zimardo’s unobjected-to testimony about what they personally observed
at the collision site was cumulative of the challenged portions of Gregory’s testimony. See Mabry
v. State, No. 05-23-00531-CR, 2025 WL 1128802, at *2–3 (Tex. App.—Dallas Apr. 16, 2025, pet.
ref’d) (mem. op., not designated for publication) (holding Article 39.14 error was harmless where
challenged evidence was cumulative of other properly admitted evidence). Accordingly, we cannot
say that any error in the admission of Gregory’s testimony “had more than a slight effect in the
jury’s determination of the case.” See Fortuna, 665 S.W.3d at 869–70. We overrule Giddings’s
first issue.
Juror Misconduct
In his second and third issues, Giddings argues that the trial court erred by denying his
motions for a mistrial stemming from two alleged instances of juror misconduct. During the
guilt/innocence phase of trial, Giddings requested a mistrial because one juror accused another of
violating the trial court’s instructions. Giddings again requested a mistrial during the punishment
phase of trial on grounds that a juror slept during the presentation of evidence.
-8-04-25-00487-CR
Standard of Review
“A mistrial is an appropriate remedy in ‘extreme circumstances’ for a narrow class of
highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.
2009). We review a trial court’s ruling on a motion for mistrial for abuse of discretion. Id. We
review the evidence “in the light most favorable to the trial court’s ruling, considering only those
arguments before the trial court at the time of the ruling.” Thomas v. State, 336 S.W.3d 703, 715
(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). “The ruling must be upheld if it was within the
zone of reasonable disagreement.” Ocon, 284 S.W.3d at 884.
“Because it is an extreme remedy, a mistrial should be granted ‘only when residual
prejudice remains’ after less drastic alternatives are explored.” Id. at 884–85 (quoting Barnett v.
State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)). Less drastic alternatives can include, inter
alia, “[q]uestioning jurors who allegedly participated in misconduct[.]” Id. at 886. “Though
requesting lesser remedies is not a prerequisite to a motion for mistrial, when the movant does not
first request a lesser remedy, we will not reverse the court’s judgment if the problem could have
been cured by the less drastic alternative.” Id. at 885. “An appellant has the burden of proving an
allegation of juror misconduct.” Thomas, 336 S.W.3d at 715.
Juror’s Violation of Trial Court Instructions
In his second issue, Giddings argues the trial court should have granted a mistrial after one
juror claimed another juror violated the trial court’s instructions by sharing his personal
experiences with her. The instruction at issue stated:
Do not tell other jurors your own personal experiences or those of other persons,
nor relate any special information. A juror may have special knowledge of matters
such as business, technical or professional matters or he may have expert
knowledge or opinions, or he may know what happened in this or some other
lawsuit. To tell the other jurors any of this information is a violation of these
instructions.
-9-04-25-00487-CR
As Giddings notes on appeal, the Texas Code of Criminal Procedures provides, “No person
shall be permitted to converse with a juror about the case on trial except in the presence and by the
permission of the court.” TEX. CODE CRIM. PROC. art. 36.22. However, even in the presence of or
with permission from the trial court, the Texas Rules of Evidence limit the evidence a trial court
may receive from a juror:
During an inquiry into the validity of a verdict or indictment, a juror may not testify
about any statement made or incident that occurred during the jury’s deliberations;
the effect of anything on that juror’s or another juror’s vote; or any juror’s mental
processes concerning the verdict or indictment. The court may not receive a juror’s
affidavit or evidence of a juror’s statement on these matters.
TEX. R. EVID. 606(b)(1). One exception to this general rule is that “[a] juror may testify: (A) about
whether an outside influence was improperly brought to bear on any juror[.]” Id. R. 606(b)(2).
“The plain language of the Rule 606(b) indicates that an outside influence is something outside of
both the jury room and the juror.” White v. State, 225 S.W.3d 571, 574 (Tex. Crim. App. 2007).
“The rule prevents a juror from testifying that the jury discussed improper matters during
deliberation.” McQuarrie v. State, 380 S.W.3d 145, 151 (Tex. Crim. App. 2012) (emphasis in
original).
Here, a juror believed that one of her fellow jurors violated the trial court’s instructions by
“talking about his job” and telling her that “[h]e was a nurse for 30 years.” The record does not
reflect that the fellow juror offered any special knowledge or personal experiences beyond
describing his job.
The juror first reported her concerns to Dee Bohnert, an employee of the Kendall County
Clerk’s Office, and Susan Jackson, the Kendall County District Clerk, who in turn notified the trial
court. After hearing testimony from Bohnert and Jackson, the trial court questioned the reporting
juror in chambers to determine “whether an outside influence was improperly brought to bear on”
- 10 -04-25-00487-CR
her. TEX. R. EVID. 606(b)(2). The juror told the trial court that her concerns did not arise from “any
outside information. It was all just inside the jury room things that were said . . . to just me.”
Based on the juror’s statements and limited by what information a trial court may receive
from a juror, the court concluded that what the juror described did not amount to an “outside
influence,” and it denied Giddings’s motion for mistrial. Under the plain language of Rule 606(b),
it did not abuse its discretion by doing so. TEX. R. EVID. 606(b); McQuarrie, 380 S.W.3d at 150–
55 (describing what constitutes an outside influence); White, 225 S.W.3d at 574; see also Ocon,
284 S.W.3d at 884. We overrule Giddings’s second issue.
Sleeping Juror
In his third issue, Giddings argues the trial court should have granted a mistrial because
one of the jurors fell asleep during the punishment phase of trial. “‘If sleep by a juror makes it
impossible for that juror to perform his or her duties or would otherwise deny the defendant a fair
trial, the sleeping juror should be removed from the jury. However, a court is not invariably
required to remove sleeping jurors, and a court has considerable discretion in deciding how to
handle a sleeping juror.’” Menard v. State, 193 S.W.3d 55, 60 (Tex. App.—Houston [1st Dist.]
2006, pet. ref’d) (quoting United States v. Freitag, 230 F.3d 1019, 1023 (7th Cir. 2000)). “The
trial court should consider whether ‘the sleeping juror missed large portions of the trial or
[whether] the portions missed were particularly critical.’” Id. (alteration in original).
Giddings’s counsel told the trial court that the juror in question “was sleeping during some
of the testimony” and “didn’t even look at [the exhibits], he just passed them on to the next juror.”
These uncontradicted statements of counsel are some evidence to support a conclusion that these
events occurred. See Thieleman v. State, 187 S.W.3d 455, 456–57 (Tex. Crim. App. 2005).
However, Giddings has never specified, either below or in this court, how long the juror slept, how
- 11 -04-25-00487-CR
much evidence he missed, or whether that evidence was “particularly critical.” See Menard, 193
S.W.3d at 60. As a result, he did not establish that the juror’s sleep made it impossible for him to
perform his duties or otherwise denied Giddings a fair trial. See id. The trial court therefore did
not abuse its discretion by denying a mistrial on this point. See id.; Thieleman v. State, No. 02-03-00141-CR, 2006 WL 744282, at *3 (Tex. App.—Fort Worth Mar. 23, 2006, pet. ref’d) (mem. op.,
not designated for publication) (considering a sleeping juror claim on remand from the Court of
Criminal Appeals). We overrule Giddings’s third issue.
CONCLUSION
Having overruled each of Giddings’s appellate issues, we affirm the judgment of
conviction.
Lori I. Valenzuela, Justice
DO NOT PUBLISH
- 12 -