NUMBER 13-24-00620-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
THE STATE OF TEXAS, Appellant,
v.
STEPHEN GRAY, Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW NO. 1
OF SAN PATRICIO COUNTY, TEXAS
MEMORANDUM OPINION ON REHEARING
Before Justices Silva, Peña, and Cron
Memorandum Opinion on Rehearing by Justice Silva
We handed down our memorandum opinion and judgment in this cause on April
30, 2026. Appellee Stephen Gray filed a motion for rehearing wherein he requested we
withdraw our memorandum opinion and issue a memorandum opinion “that affirms one
or both of the trial court’s orders as required and appropriate under the theories of law
applicable to the case.” Among the issues raised, Gray contends that Texas Code of Criminal Procedure Article 38.22 is a theory of law applicable to his case. See TEX. CODE
CRIM. PROC. art. 38.22. Appellant the State of Texas filed a response. After examining
and fully considering the issues raised in Gray’s motion and the State’s response, we
grant Gray’s motion for rehearing. Accordingly, we withdraw our April 30, 2026
memorandum opinion and judgment and we substitute the following memorandum
opinion and accompanying judgment in their place. In so doing, we dispose of the case
without rebriefing or oral argument.
The State appeals the trial court’s orders granting a motion to exclude and a motion
to suppress in favor of Gray. By a single issue, the State contends that the trial court erred
in granting both of Gray’s motions. We affirm in part and reverse and remand in part.
I. BACKGROUND
On November 3, 2021, Gray was charged by information with driving while
intoxicated (DWI), a Class B misdemeanor. See TEX. PENAL CODE § 49.04. Gray
requested discovery from the prosecutor’s office on November 12, 2021. The prosecutor’s
office subsequently provided Gray’s counsel discovery, including a DWI case report that
indicated Gray’s interview was “asked on video.” On May 31, 2022, Gray filed a formal
request for compliance with Article 39.14 of the Texas Code of Criminal Procedure. See
TEX. CODE CRIM. PROC. art. 39.14. On December 12, 2023, Gray’s counsel emailed the
prosecutor inquiring about the status of the video stating, “Do you have that video and
does it exist?” A jury trial commenced the following day, and the trial court granted a
mistrial without prejudice. 1
1 The record before us does not contain the reporter’s record of the December 2023 trial.
2
On September 24, 2024, Gray filed a motion to suppress all illegally obtained
evidence and statements resulting from his October 4, 2021 arrest. On October 21, 2024,
Gray filed a “Motion to Exclude.” In that motion, Gray requested that the trial court exclude
“all evidence offered by the [prosecution], in any form[,] regarding the intoxilyzer room
and anything that took place in that room” based on alleged violations of Article 39.14 of
the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 39.14. On the
same day, Gray filed an “Amended Motion to Suppress Illegally Obtained Evidence,
Statements and Evidence That is No Longer Available Due to Destroyed Records.” In the
amended motion, Gray requested the trial court to suppress “any and all statements taken
from [Gray] at the Portland Police Department [(PPD)] on October 4, 2021[,] and October
5, 2021.” In that motion, Gray argued several theories, including that Gray’s statements
were involuntary, that he was coerced, that he was deprived of his right to counsel, that
he could not make an intelligent and knowing waiver, and that his statements “were taken
without the safeguards required by and in violation of Article 38.22 of the Code of Criminal
Procedure.” Gray also argued that
[a]ny evidence obtained is not able to be viewed, cross examined or
analyzed by [Gray’s counsel] or the jury as the records have now been
destroyed and not maintained as [Article] 39.14 dictates and in violation of
[Gray’s] right to a fair trial, discovery and the rights prescribed to him under
the Texas Code of Criminal Procedure.”
Finally, Gray argued that admission of his statements would be in “violation of [his] rights
pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution, Article I, Section 9 and 10 of the Texas Constitution and Articles 1.05 and
38.23 of the Texas Code of Criminal Procedure.”
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A. Hearing on Gray’s Amended Motion to Suppress and Motion to Exclude
On October 28, 2024, the trial court conducted a hearing on both of Gray’s motions.
At the hearing, PPD Corporal Christopher Tysor testified that in December of 2023 he
was contacted by the prosecutor in an “attempt to locate any video . . . that would have
been submitted” by PPD in relation to Gray’s case. He further testified that although he
was not assigned to the case, he confirmed that two body camera videos and one dash
camera video from Gray’s arrest were turned over to the prosecution. Corporal Tysor
explained that part of his duties include making sure that all evidence is submitted in a
particular case. He described the process when submitting a case to the prosecutor’s
office that includes signing a Brady compliance form. See Brady v. Maryland, 373 U.S.
83, 87 (1963). On cross-examination, Corporal Tysor was questioned regarding missing
evidence. He responded, “I’m not aware of any evidence that was missing in this case.”
When pressed about a recording in the intoxilyzer room, Corporal Tysor testified, “I don’t
know if it was working or not that day” and “before we do an intoxilyzer operation of that
instrument, we don’t have electronic devices on in there, to include body cam[eras],
because it can interfere with the results.” He explained, “That’s how we’re trained when
we go to intoxilyzer school.”
PPD Detective David Cisneros testified that whenever the patrol officers make an
arrest, the detectives “put the case in order” by collecting any videos and paperwork
associated with the case and forwarding it to the proper agency. He admitted that there
was a camera in the intoxilyzer room that works “on and off.” Detective Cisneros agreed
that PPD could not determine if that specific camera was working at the time of Gray’s
arrest, and he could not say whether it had audio or not. He further stated that dispatch
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had live access to the camera for safety purposes and PPD did not normally include that
type of video footage in its case file “unless there was an incident, maybe a fight or
anything of that nature.” Detective Cisneros confirmed that PPD was aware that the
camera worked sometimes and other times it did not. Regardless, he noted that PPD did
not rely on the camera in the intoxilyzer room, and he also confirmed that officers should
have their body cameras turned on when making any contact with an individual or the
public.
On re-direct examination, the following colloquy occurred:
[Prosecutor]: So either you or [Detective Joe] Tamez looked
at this report, you got the body cam[era] and the
dash cam[era]s—
THE COURT: Okay, let’s clarify. Who looked at the report?
Was it this witness? Were you the one that
oversaw the submitting of the evidence from this
officer to the [prosecution]?
[Detective Cisneros]: It was both of us, ma’am.
THE COURT: Both of you. Okay. Thank you.
[Prosecutor]: So was the video made of that room?
[Detective Cisneros]: No, there was . . . no video.
[Prosecutor]: In this report?
[Detective Cisneros]: In the report.
[Prosecutor]: Okay. So [P]PD didn’t withhold any information,
did they?
[Detective Cisneros]: No ma’am.
[Prosecutor]: Okay. And so if three videos were given in this
report to the [prosecution], that’s what was given
to us, correct?
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[Detective Cisneros]: Correct, yes, ma’am.
[Prosecutor]: Okay. Would you agree with me that if . . . the
camera was working and if a video was made of
this arrest, it no longer exists?
[Detective Cisneros]: Correct, yes, ma’am.
Former PPD Officer Amanda Butler testified that she was present on the night of
Gray’s arrest. When asked by the prosecutor whether the video at issue was recovered,
she replied, “No.” She also testified “I don’t know” when asked if the video existed.
Former PPD Officer Joseph Riojas testified and the following exchange occurred:
[Prosecutor]: Okay. So . . . we talked about this DWI case
report. The questions that are asked . . .[are] in
booking, correct?
[Officer Riojas]: Right.
[Prosecutor]: Okay. In this particular case, you did ask [Gray]
these questions, correct?
[Officer Riojas]: Yes.
[Prosecutor]: But when you got to the jail, the booking area,
whatever, did you keep your camera on?
[Officer Riojas]: No.
[Prosecutor]: Why was that?
[Officer Riojas]: I was told that . . . the electronics could interfere
with the intoxilyzer, so I turned it off.
[Prosecutor]: Okay. And . . . do you remember where the
questioning took place?
[Officer Riojas]: My field training officer was a 1081 certified
instructor, or certified operator, so he would
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have had to be there in the intox[ilyzer]
room . . . asking those questions. Or both of us,
I should say.
[Prosecutor]: Okay. So it’s your recollection that these
questions were asked in the intoxilyzer room?
[Officer Riojas]: Right.
[Prosecutor]: Okay. But in your report—may I approach, Your
Honor?
THE COURT: You may. For the purposes of the record, what
is it that you’re showing [Officer Riojas]?
[Prosecutor]: It’s a DWI case report, page eight and nine of
nine.
And this box is filled in?
[Officer Riojas]: Yes.
[Prosecutor]: And what does this say?
[Officer Riojas]: Interview asked on video.
[Prosecutor]: Okay. You put that, right?
[Officer Riojas]: Yes.
[Prosecutor]: But your body cam[era] was off?
[Officer Riojas]: Right.
[Prosecutor]: So how do you know it was on video?
[Officer Riojas]: Because the intox[ilyzer] room is supposed to
have a . . . camera recording.
[Prosecutor]: Okay. So you saw a camera there?
[Officer Riojas]: Yes.
[Prosecutor]: Is it fair to say you assumed it was recording?
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[Officer Riojas]: Yes.
[Prosecutor]: Okay. And Officer Riojas, you also fill[ed] out a
Brady compliance form, correct?
[Officer Riojas]: Yes, ma’am.
[Prosecutor]: And to the best of your knowledge, all videos
were turned in to the [prosecution], correct?
[Officer Riojas]: Yes.
[Prosecutor]: And at that time, with your [DWI] report, you
thought that camera had been turned over to the
[prosecution]?
[Officer Riojas]: Correct.
[Prosecutor]: Do you know whether or not that video was
turned over?
[Officer Riojas]: I mean now I know that it wasn’t.
Prosecutor Angela Godoy also testified during the hearing. Godoy testified that
discovery was emailed to Gray’s counsel on November 12, 2021. She further testified
that on December 12, 2023, Gray’s counsel asked her whether an additional video
existed. Godoy explained that when this occurred, she took action to locate the video.
She stated that,
[Gray’s counsel] wants to say that I didn’t inquire until February of this year.
That’s not the case. I had been inquiring. I knew what was going on, or I
was told the camera may work, may not work, it’s only held for [thirty] days,
so yes, at this point it did not exist, and it never had audio, is what I was
told.
The trial court noted on the record that “there was no bad faith or acts of gross
negligence found on behalf of the [prosecution].” Notably, Gray’s counsel appeared to
8
concede that the testimony adduced at the hearing did not show that the intoxilyzer room
was recorded: “Whether it was recorded, we cannot know.”
The primary arguments addressed at the hearing concerned Article 39.14.
However, there were instances during the hearing when the prosecutor appeared to
concede that Gray’s statements should be excluded:
THE COURT: Well, I’m trying to make sure we’re clear on why
we are here and what we’re asking to be
excluded under this motion.
[Prosecutor]: I believe just his statements—well, she’s asking
for statements and anything that occurred from
that point.
The State would argue if anything would be
withheld, it would only be the statements, and
the State would argue that nothing should be
withheld under [Article] 39.14, and the State’s
ready to present evidence on that issue, Judge.
[Prosecutor]: Just so we understand, Judge, the questions
asked of [Gray] cannot be used. [The] State
understands that.
His statements, fine, are excluded. There’s no
video, fine, excluded. But to prevent us to
explain that, or why we don’t have statements, I
think is going way beyond this ruling and the
[prosecution] should be able to offer that. We’re
only talking about the statements, Judge.
[Prosecutor]: I mean [Gray’s counsel is] arguing these two
pages, statements of [Gray]. Fine, the State is
fine with that.
9
But for the officer not to be able to talk about the
rest of his report, and the fact that [Gray] refused
a breathalyzer, when he first consented to,
which we have on video, that’s going way
beyond the scope.
The trial court pronounced that it was granting both motions and thereby excluding and
suppressing Gray’s “statements and all evidence obtained during the interrogation
conducted at [PPD].”
B. Findings of Fact and Conclusions of Law
On January 13, 2025, the trial court entered, in relevant part, the following findings
of fact and conclusions of law pertaining to both motions:
Findings of Fact
1. [Gray] was arrested for the offenses of [DWI] and Unlawful Carrying
of a Weapon on or about October 4, 2021.
2. [Officer Riojas] conducted the interview with [Gray] in the [PPD’s
i]ntoxilyzer room.
3. [PPD] had surveillance and recording equipment in the [i]ntoxilyzer
room.
4. [Officer Riojas] turned off his body cam[era], relying on the
[i]ntoxilyzer room surveillance and recording equipment to record the
interview.
6. [Officer Riojas] nor any other officer from [PPD] downloaded and
submitted the video of [Gray]’s interview to the [prosecution].
22. [Officer Riojas] failed to download and maintain the video recording
of [Gray]’s interview. [PPD] failed to ascertain the existence of the
video interview and provide it to the [prosecution]. Failure to
ascertain the existence of the video and failure to download the video
interview resulted in its destruction.
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Conclusions of Law
12. Under the facts of this case, [PPD] failed to ascertain what evidence
was in its possession and failed to download and maintain the video
recording of [Gray]’s interview.
13. Under the facts of this case, the [prosecution] had a DWI case report
submitted by [Officer Riojas] that detailed the interview with [Gray]
was on video. The [prosecution] knew the videos in its possession
did not contain an interview of [Gray]. The [prosecution] failed to
ascertain from [PPD] anything about [Gray]’s interview recording,
resulting in such evidence being destroyed. This failure constitutes a
violation of the duty imposed by the plain language of [Article]
39.14(a) . . . [.]
14. Therefore, because [PPD] and the [prosecution] failed to comply with
Article 39.14(a), the testimony and the evidence obtained during the
interview with [Gray] is excluded from evidence.
Notably, the trial court made no finding that any portion of the officers’ testimony
was not credible. This appeal ensued.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s exclusion of evidence for an abuse of discretion. State v.
Heath, 696 S.W.3d 677, 688 (Tex. Crim. App. 2024). “A trial court abuses its discretion if
its decision lies outside of the zone of reasonable disagreement.” Id. at 688–89. We may
not substitute our own decision for that of the trial court. Id. at 689. We will not intercede
with the trial court’s decision as long as its evidentiary ruling is within the zone of
reasonable disagreement. Id.
In reviewing a trial court’s ruling on a motion to suppress evidence, we use a
bifurcated standard of review. Armstrong v. State, 713 S.W.3d 893, 902 (Tex. Crim. App.
11
2025); Wexler v. State, 625 S.W.3d 162, 167 (Tex. Crim. App. 2021); Pecina v. State,
361 S.W.3d 68, 78–79 (Tex. Crim. App. 2012). “We afford almost total deference to the
trial court’s rulings on questions of historical fact and on application of law to fact
questions that turn upon credibility and demeanor . . . .” Pecina, 361 S.W.3d at 79. A trial
court’s ruling should not be reversed unless it is arbitrary, unreasonable, or outside the
zone of reasonable disagreement. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App.
2018). When a trial court makes express findings of fact, we “must examine the record in
the light most favorable to the ruling and uphold those fact findings so long as they are
supported by the record.” Tilghman v. State, 624 S.W.3d 801, 806 (Tex. Crim. App. 2021).
“We, however, review de novo the trial court’s rulings on pure questions of law or mixed
questions of law and fact that do not hinge on credibility or demeanor.” Ochoa v. State,
707 S.W.3d 344, 360 (Tex. Crim. App. 2024). We will affirm the trial court’s ruling on a
motion to suppress if it is supported by the record and “correct under any applicable theory
of law.” Armstrong, 713 S.W.3d at 902. “A legal theory is not applicable to the case if the
appealing party did not have an adequate opportunity to develop a complete factual
record with respect to the theory.” State v. Castanedanieto, 607 S.W.3d 315, 327 (Tex.
Crim. App. 2020).
A criminal defendant has the constitutional right to due process. See U.S. CONST.
amend. XIV; TEX. CONST. art. I, § 19. “According to the plain text of Article 39.14, criminal
defendants now have a general statutory right to discovery in Texas beyond the
guarantees of due process,” requiring the State to “disclose all ‘exculpatory, impeaching,
and mitigating’ evidence to the defense that tends to negate guilt or reduce punishment”
and is within its “possession, custody, or control.” Watkins v. State, 619 S.W.3d 265, 277,
12
291 (Tex. Crim. App. 2021) (citing TEX. CODE CRIM. PROC. art. 39.14(a)). “[T]he obligation
to produce material evidence extends to evidence that is in the possession of law
enforcement agencies.” Heath, 696 S.W.3d at 708. To be clear, the evidence must be
within the State’s possession, custody, or control for purposes of an Article 39.14
compliance challenge. See In re State ex rel. Skurka, 512 S.W.3d 444, 455 (Tex. App.—
Corpus Christi–Edinburg 2016, no pet.); see also Mitchell v. State, No. 01-23-00251-CR,
2024 WL 187385, at *7 (Tex. App.—Houston [1st Dist.] Jan. 18, 2024, no pet.) (mem. op.,
not designated for publication) (“The defendant has the burden to show the complainedof evidence was in the State’s possession but withheld.”); Mumphord v. State, No. 13-22-00388-CR, 2023 WL 6886119, at *8 (Tex. App.—Corpus Christi–Edinburg Oct. 19, 2023,
pet. ref’d) (mem. op., not designated for publication) (“We will not impose a burden on the
State to produce evidence which may not be available or might not even exist.”); Chandler
v. State, No. 02-18-00166-CR, 2018 WL 6565812, at *1 n.2 (Tex. App.—Fort Worth Dec.
13, 2018, pet. ref’d) (mem. op., not designated for publication) (“[T]he State’s duty to turn
over material evidence and exculpatory evidence does not extend to lost items but instead
is limited to items in its possession, custody, or control.”).
III. ANALYSIS
A. Existence of Video
The State argues in part that no evidence was presented establishing the camera
in the intoxilyzer room even made a video recording on the night of Gray’s arrest. We
agree. Certain findings made by the trial court are simply not supported by the record.
See Tilghman, 624 S.W.3d at 806.
The trial court found that neither “[Officer Riojas] nor any other officer from [PPD]
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downloaded and submitted the video of [Gray]’s interview to the [prosecution].” This
finding is premised on the existence of a video recording of Gray’s interview. However,
testimony adduced at the hearing did not establish that such video existed. Instead,
Corporal Tysor confirmed that two body cameras and one dash camera were provided to
the prosecution concerning Gray’s case. Further, testimony by Detective Cisneros
confirmed that there was no video recording from the intoxilyzer room, and no portion of
his testimony indicated that a video of Gray existed. He also testified that the camera in
the intoxilyzer room worked sometimes, that PPD did not rely on the camera, and he was
not sure if the audio worked or not. Additionally, Officer Butler testified that the purported
video was not recovered and she was unaware of its existence. Officer Riojas testified
that in his DWI report he indicated that there was a video of Gray’s interview because he
noticed a camera in the intoxilyzer room and assumed it was functioning. Moreover,
Gray’s counsel seemingly conceded that there was no evidence that the video at issue
existed by stating at the hearing, “Whether it was recorded, we cannot know.” We
conclude the trial court’s finding was not supported by the record evidence adduced at
the hearing. See id.
Next, the trial court found that the “[f]ailure to ascertain the existence of the video
and failure to download the video interview resulted in its destruction.” As already
discussed supra, the evidence adduced at the hearing did not show that a video existed
and, moreover, did not prove its destruction. Detective Cisneros’s testimony merely
established that the camera in the intoxilyzer room works “on and off” and if the video of
Gray did exist, the recording would no longer be available. When the prosecutor asked,
“Would you agree with me that if . . . the camera was working and if a video was made of
14
this arrest, it no longer exists,” he replied, “Correct, yes, ma’am.” Considering the
hypothetical nature of the prosecutor’s question, we cannot conclude that Detective
Cisneros’s testimony constitutes evidence that a video actually existed and was
destroyed. The trial court’s finding concerning the video’s destruction was not supported
by the evidence at the hearing. See id.
Accordingly, the trial court’s conclusions of law concerning the existence and
destruction of a video containing Gray’s interview are erroneous in light of the
unsupported findings of fact as discussed above. Because the trial court’s findings
concerning the same are not supported by the record, we conclude that the trial court
erred when it suppressed the testimony and evidence obtained during Gray’s interview.
See id. We sustain the State’s issue as it relates to the trial court’s order granting Gray’s
motion to exclude.
B. Procedural Default of Issue Challenging the Trial Court’s Order Suppressing
Gray’s Statements
The trial court’s conclusions of law primarily concerned Article 39.14 as detailed
above, but did not reference any of the other various theories Gray lodged concerning his
statements in his amended motion to suppress. The State appealed both orders and
requested we vacate both. In its brief, the State challenged the trial court’s explicit findings
and conclusions of law concerning Article 39.14. In our April 30, 2026 memorandum
opinion, we found that certain findings were not supported by the record, and that was
fatal to the trial court’s conclusions of law relating to Article 39.14. We therefore reversed
both of the trial court’s orders.
However, Gray’s motion for rehearing points out that the State’s brief did not
15
challenge the trial court’s rulings on any basis other than Article 39.14. Gray correctly
notes that the trial court’s ruling must be sustained on any theory of law applicable to the
case. See Armstrong, 713 S.W.3d at 902. As previously discussed, Gray contends that
Article 38.22 is one such theory. See TEX. CODE CRIM. PROC. art. 38.22. According to
Gray, “If the recording of the jail interview was not available as required by Article 38.22,
[his] statements were not admissible regardless of the diagnostic reason of a discovery
violation and whether it ever existed and was lost or never existed at all.” Gray notes that
the State appeared to not contest this theory concerning his statements at the hearing
and did not address it in its briefing.
The State failed to address in its appellate brief Gray’s assertion that Article 38.22
was violated, as well as any of the other legal theories Gray alleged in his amended
motion to suppress. We further note the State had an adequate opportunity to develop a
complete factual record with respect to statements under Article 38.22 because the
prosecutor appeared to concede at the hearing that Gray’s statements should be
excluded. 2 See Castanedanieto, 607 S.W.3d at 327. Accordingly, we conclude that
Article 38.22, as asserted in his amended motion to suppress, was a theory of law
applicable to Gray’s case. See id. Because the State has not challenged all applicable
theories of law supporting the trial court’s order suppressing Gray’s statements, it has
procedurally defaulted its appellate issue challenging that ruling. See State v. Copeland,
501 S.W.3d 610, 614 (Tex. Crim. App. 2016) (holding “that the State procedurally
defaulted its . . . argument because, although it was a theory of law applicable to the case,
2 We also note that the State does not argue on appeal that it lacked adequate opportunity to
develop a complete factual record concerning the alleged Article 38.22 violation.
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the State failed to advance that argument on appeal”); TEX. R. APP. P. 38.1(i). As a result,
we must uphold the trial court’s order granting Gray’s amended motion to suppress
without considering the merits of said motion. See Copeland, 501 S.W.3d at 614. We
overrule the State’s issue challenging the trial court’s order granting Gray’s amended
motion to suppress.
IV. CONCLUSION
We affirm the trial court’s order granting Gray’s amended motion to suppress. We
reverse the trial court’s order granting Gray’s motion to exclude and remand the case to
the trial court for further proceedings in accordance with this memorandum opinion.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
9th day of July, 2026.
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