In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-25-00113-CR
NICOLE DIANE EBERT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 24-01-01083
MEMORANDUM OPINION
Nicole Diane Ebert appeals her conviction for driving while intoxicated third
or more. Tex. Penal Code Ann. § 49.09(b). In seven issues, Ebert complains that: (1)
the trial court erred in denying her motion to suppress certified judgments under
Code of Criminal Procedure article 39.14; (2) the trial court erred in declining to
exclude at punishment a witness’s testimony as a sanction for an alleged discovery
and Brady violation; (3) the trial court erred in placing the burden of proof on the
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defendant in a suppression hearing; (4) the trial court erred in denying Ebert’s motion
to suppress evidence obtained as a result of a traffic stop; (5) the trial court abused
its discretion by denying Ebert’s motion to suppress blood evidence by finding that
Ebert did not meet her burden of proving that the warrant was invalid for lack of an
oath; (6) the trial court misapplied the law by treating the officer’s signature on the
search warrant affidavit as a belated oath that could validate the warrant; and (7) the
trial court erred in denying Ebert’s request for an article 38.23 jury charge
instruction. For the reasons discussed below, we affirm the trial court’s judgment.
Background
Ebert was indicted for driving while intoxicated third or more. The indictment
alleged that on or about January 19, 2024, Ebert operated a motor vehicle in a public
place while intoxicated. The indictment further alleged:
And it is further presented in and to said Court that, prior to the
commission of the foregoing offense, on June 7, 2006, in Cause
Number 1347424 in the County Criminal Court at Law #15 of Harris
County, Texas, the defendant was convicted of an offense relating to
the operating of a motor vehicle while intoxicated; and on July 30,
2018, in Cause Number 2216897 in the County Criminal Court at Law
#8 of Harris County, Texas, the defendant was convicted of an offense
relating to the operating of a motor vehicle while intoxicated[.]
During the evening of January 19, 2024, Officer Jeremy Baker with the
Conroe Police Department was working the “safety shift” and came into contact with
Ebert’s vehicle on the I-45 southbound feeder road. Baker observed the vehicle
traveling sixty-seven miles per hour in a forty-five mile-per-hour zone. He observed
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the vehicle slow down as it drove on the entrance ramp to get on the main lanes of
the freeway. Baker followed her vehicle onto the main lanes of the freeway and
observed the vehicle swerve from left to right within its lane, weave into an adjoining
lane, cross a solid line onto the shoulder, and follow a slow-moving vehicle too
closely. Based on his combined observations, Baker suspected the driver of the
vehicle was intoxicated. Baker stopped the vehicle and identified the driver of the
vehicle as the defendant.
When Baker approached Ebert’s vehicle, he noticed an odor of an alcoholic
beverage and observed an open wine bottle on the floorboard. Ebert told Baker that
she was coming from Spring and going to her home in The Woodlands, although she
was already north of, and traveling away from, The Woodlands. Ebert denied
drinking alcohol. Baker then drove Ebert to a nearby gas station to perform
standardized field sobriety tests.
Baker administered the horizontal gaze nystagmus test and observed all six
clues indicating intoxication. He observed five of eight clues on the walk-and-turn
test. On the one-leg stand test, Baker observed one of four clues. Baker concluded
that Ebert was operating a vehicle while intoxicated and placed her under arrest.
Baker requested Ebert’s consent for a blood draw, but she refused. After
seeing the open container of the wine bottle, Baker searched Ebert’s vehicle incident
to the DWI arrest and found a second, unopened bottle of wine. Because Ebert did
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not consent to the blood draw, Baker obtained a search warrant, and after the blood
draw was conducted at the hospital, Baker drove Ebert to the jail. A forensic scientist
with the Department of Public Safety testified that Ebert’s blood sample contained
0.138 grams of alcohol for 100 milliliters of blood.
David Stovall, an investigator with the Montgomery County District
Attorney’s Office, prepared a fingerprint card with Ebert’s fingerprints in the
courtroom and found that they matched the fingerprints on several judgments of
conviction. Guilt-stage exhibits revealed that Ebert was convicted of DWI in Harris
County in 2005 and again in 2018. The jury found Ebert guilty and sentenced her to
four years in prison.
Issues
Issue One: Motion to Suppress Certified Judgments
In her first issue, Ebert complains that the trial court erred in denying her
motion to suppress certified copies of judgments reflecting Ebert’s previous
convictions for DWI. Ebert argues the certified judgments should have been
excluded under article 39.14(a) of the Code of Criminal Procedure and pursuant to
the trial court’s standard discovery order because the State failed to deliver the
certified copies of the judgments prior to trial, she argues the trial court abused its
discretion in declining to exclude the exbibits as a sanction for their late production.
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The trial court’s “Standing Discovery Order” required the State to furnish
inspection of “All records of convictions which may be admissible in evidence or
impeachment of the defendant.” The order required that the items be furnished for
inspection and copying “on or before 21 days before trial[.]” A grand jury indicted
Ebert on March 19, 2024, and the indictment listed two convictions for jurisdictional
enhancement purposes. On October 18, 2024, Ebert’s defense counsel filed a written
motion for discovery that asked the State to “provide written notice, at least ten days
before the start of trial, of its intent to use any evidence or testimony regarding the
matters described in Rules 404(b) and 609(f) of the Texas Rules of Evidence and
Article 37.07 of the Code of Criminal Procedure.”
The “eDiscovery Audit Log” indicates that on October 22, 2024, the State
uploaded to its discovery portal documents described as “DWI 1ST JUDGMENT”
and “DWI 2ND JUDGMENT[.]” The log reflects that Ebert’s counsel viewed these
judgments via the discovery portal on October 28, 2024. The State also uploaded a
document entitled “REPORT- DPS DWI 2ND & ASSLT ON PEACE OFFICER
(2014)” which was viewed by Ebert’s defense counsel on October 28, 2024.
On January 8, 2025, the trial court set the case for trial to start on March 24,
2025. On February 13, 2025, the State notified Ebert in writing of its intent to offer
evidence under article 37.07, listing all four of Ebert’s prior convictions, including
the two Harris County DWI convictions described in the indictment, and Ebert’s
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2015 Montgomery County convictions for DWI and assault. The written notice
identified the prior convictions by offense, date of conviction, court, and cause
number.
On the first day of trial, March 24, 2025, the State obtained and shared
certified copies of Ebert’s two prior DWI convictions which are alleged as
jurisdictional enhancements in the indictment. The judgments and sentences were
shared in jury selection and then later that night after the jury was sworn and trial
had begun. The judgments were uploaded to the electronic portal discovery at 7:32
P.M. on March 24, 2025.
The next day, Ebert moved to suppress the certified copies of the judgments
and sentences because they were released to her after trial had begun, in violation of
the standing discovery order and her article 39.14 request. Ebert’s counsel argued
that the untimely disclosure was prejudicial because it affected her ability to create
her defense. At the hearing on the motion, Ebert’s counsel admitted receiving Ebert’s
criminal history and non-certified copies of the judgment more than twenty-one days
before trial. The trial court denied the motion to suppress the certified copies of the
judgments. Ebert moved for a continuance, which the trial court denied.
Two days later, on March 27, 2025, the trial court admitted into evidence over
objection the certified copies of the judgments reflecting Ebert’s 2006 and 2018
DWI convictions that were alleged in the indictment. After the conclusion of the
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guilt stage of the trial, Ebert renewed her request to suppress the certified copies of
the 2015 judgments, arguing that the State provided notice only that it intended to
put on evidence regarding the judgments but not that it intended to introduce the
actual judgments and sentences. The trial court noted that Ebert’s counsel had been
provided Ebert’s full criminal history in October 2024 and that she was notified of
the State’s intent to introduce evidence of her 2015 convictions in February 2025.
The trial court denied Ebert’s motion to exclude the certified copies of the 2015
judgments. On March 28, 2025, certified copies of the judgments for the 2015
convictions were admitted into evidence without further objection.
“We review a trial court’s decision to exclude evidence under an abuse of
discretion standard.” State v. Heath, 696 S.W.3d 677, 688 (Tex. Crim. App. 2024).
We may not substitute our own decision for that of the trial court. Id. at 689. We will
not overturn the trial court’s decision unless its ruling is outside the zone of
reasonable disagreement. Id.
Article 39.14(a) of the Texas Code of Criminal Procedure provides, in
relevant part:
[A]s 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 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,
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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. Ann. art. 39.14(a). Article 39.14(a) imposes a duty upon the
State to produce discovery materials “as soon as practicable after receiving a timely
request from the defendant[.]” Id. When the State willfully violates article 39.14, the
trial court may exclude the evidence at issue as a “court-fashioned sanction for
prosecutorial misconduct[.]” In re State, 605 S.W.3d 721, 726 (Tex. App.—Houston
[1st Dist.] 2020, orig. proceeding) (quoting Francis v. State, 428 S.W.3d 850, 855
(Tex. Crim. App. 2014)). However, as the Court of Criminal Appeals recently held
in Heath, exclusion is not an automatic remedy. Instead, the trial court has the
inherent authority to fashion a remedy to control its docket. Heath, 696 S.W.3d at
703, 707-09.
In Heath, the Court of Criminal Appeals affirmed a trial court’s decision to
exclude an exhibit which had been in the possession of a law enforcement agency
for seventeen months but was disclosed to the defense six days before trial. Id. at
702-03. The Court held that “it might have been better practice for the trial court to
grant even a short recess[]” to allow the defense to prepare for the admission of the
evidence, but “the trial court was within its authority to reject the State’s argument
for a continuance.” Id. at 708. The Court noted:
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The State maintains that the appropriate remedy for an untimely
disclosure to allow defense counsel more time to review the recently
disclosed evidence. We acknowledge that a continuance would be a
much more restrained solution. But that’s not the question before us.
The question before us is whether the trial court had the authority to
impose the remedy it did. That the trial court could have imposed a
lesser remedy, assuming the formal requirements for a continuance
were met, does not mean the trial court abused its discretion by
excluding the evidence in this case. It may very well be that reasonable
jurists could disagree about the appropriate remedy in a particular case,
but unless the trial court’s decision is outside the zone of reasonable
disagreement, this Court will not overturn its ruling. We agree with the
court of appeals that the trial court was within its discretion to fashion
a remedy it deemed appropriate.
Id. at 707-08.
Having reviewed the record, we cannot conclude that the trial court abused its
discretion in refusing to exclude the certified judgments based on the State’s
untimely disclosure. Here, Ebert had notice from the date she was charged in January
2024 that the State intended to offer evidence of her Harris County DWI convictions.
Ebert additionally had notice more than a month before trial of the State’s intent to
offer punishment stage evidence of the 2015 Montgomery County convictions.
Importantly, the State provided the defense non-certified copies of the judgments in
October 2024, and the discovery log shows that defense counsel viewed these
judgments on October 28, 2024.
Ebert asserts that the late disclosure of the certified judgments prevented her
from developing a trial strategy, such as whether to plea. Ebert has not identified a
trial strategy or a plea that was lost as a result of not having received certified copies
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of judgments any earlier than she did. Without more, Ebert’s arguments are too
general and hypothetical to show actual harm. Ebert’s motion for discovery did not
ask for certified copies of the judgments. By producing non-certified judgments in
discovery and certified judgments on the first day of trial, it does not appear that the
State engaged in willful misconduct that would justify the exclusion of evidence as
a discovery sanction. See id. at 704, 708 (citing Hollowell v. State, 571 S.W.2d 179,
180 (Tex. Crim. App. 1978)). Because the trial court did not abuse its discretion by
admitting the certified judgments, we overrule Ebert’s first issue.
Issue Two: Testimony of Punishment-Stage Witness
In her second issue, Ebert complains that the trial court erred in allowing
Trooper Brad Reece to testify during the punishment stage about Ebert’s 2014 arrest
for DWI and assault on a peace officer because the State failed to provide Ebert’s
current counsel, prior to trial, a copy of Reece’s video recording of the incident.
Ebert alleges the recording constituted “mitigation and impeachment” under article
39.14 and Brady because it allegedly shows Reece choking Ebert.
Before Reece could testify about the May 29, 2014 incident, Ebert objected
and asked to approach. Ebert complained that under Brady, the State failed to turn
over a body camera’s recording of the incident. The State responded that it gave
notice of intent to present the evidence and produced an offense report from the
incident. The State claimed it did not possess the video and was unaware whether
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Ebert made a specific request for the video. Moreover, the State stated there was an
active destruction order in this case. The trial court denied Ebert’s motion based on
the destruction order but stated that “we’ll see where it goes from here, which means
get into it prior to getting into it.”
A short time later, Ebert’s counsel approached and told the trial court that
there was no destruction order in this case and that Ebert’s “previous counsel was
able to obtain the video somehow through the DA’s office, so this in-car video exists
and they have not turned it over.” The trial court asked the State to confirm the
destruction of the recording and directed the State to call another witness in the
interim.
After the other witness testified, Ebert’s counsel announced that the State had
found a file containing the video recording. Ebert’s counsel made a motion to
exclude Reece from testifying because “we have not had all of the evidence we need
in order to prepare to cross-examine the State’s punishment witness and it would be
– the Defense would be prejudiced.” The State explained that the State’s files for
misdemeanor cases were destroyed after a certain retention period, but counsel had
neglected to note the existence of a felony case with a longer retention period. An
administrative assistant for the State found the “paper file” for the felony in the attic
of the courthouse, with the misdemeanor file attached. The State argued that Reece
should be permitted to testify because Ebert’s counsel knew of the existence of the
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recording and made no effort to obtain it. The State explained that a copy of the
recording had already been provided to the law partner of Ebert’s previous counsel
and that a prior attorney for the defendant told Ebert’s current counsel that a video
exists.
Ebert’s counsel responded that she specifically requested in her October 18,
2024 discovery request “any exculpatory impeachment or mitigation document,
item, or information in the possession, custody, or control of the State that tends to
negate the guilt of the accused or would tend to reduce the punishment for the offense
charge.” Ebert’s counsel renewed her motion to exclude the witness or in the
alternative, motion for continuance to review the file, arguing that “it’s far more
prejudicial to the Defense to allow this witness to testify when the State has had this
discovery in their possession – in their possession the whole time.” Ebert’s counsel
stated that she did not get the file from the previous attorney, but that she knew the
video existed from her client.
The trial court announced at 1:30 p.m. that it was instructing defense counsel
to watch the video and that the trial court would exclude the video. Once defense
counsel watched the video, the trial court would allow Reece to testify. The trial
court would also allow Ebert’s counsel to show the trial court any discrepancy
between Reece’s testimony and what the recording showed.
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At 2:04 p.m., defense counsel stated that he was still reviewing the recording,
that he had twenty-six minutes of footage left to view, and that he would find what
he was looking for in the next five or ten minutes. The trial court instructed defense
counsel to “keep watching.” At 2:15 p.m., defense counsel announced that he was
still watching the video. The trial court stated for the record that it “gave ample
amount of time” for defense counsel “to look at an exhibit that’s not going to be
admitted.”
Reece then recounted how Ebert resisted arrest after she refused standard field
sobriety tests. He described how after placing her under arrest and in the front seat
of his vehicle, Ebert “pulled her arms around and then she proceeded to just scratch
and claw at my arm and to a point to where I have a scar here still and caused me to
bleed and scarred it up on me.” Ebert continued acting belligerent and refused
consent to providing a sample of her breath or blood. Because Ebert was so
belligerent, three additional troopers held her down. During the blood draw, Ebert
had to be held down. After the blood draw, Ebert began flailing in the car and became
belligerent again, so Reece had a Shenandoah officer transport her to jail in a vehicle
equipped with a cage.
During cross-examination, Reece testified he did not recall Ebert’s repeatedly
demanding her Miranda rights be read prior to her arrest, so the trial court excused
the jury while Ebert refreshed Reece’s memory with the excluded video. Defense
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counsel then accused Reece of putting both of his hands around Ebert’s neck while
putting her into the vehicle. Reece denied it, explaining that “it was more of a thumb
going to the pressure point behind her ear to again, gain compliance of her, because
she was kicking my door and banging at my door – and I didn’t want her to hurt
herself or anyone else.” Defense counsel then showed Reece a screenshot from the
excluded video recording, but Reece continued to deny having applied any pressure
to Ebert’s throat.
A Brady violation occurs when the State suppresses, willfully or
inadvertently, evidence favorable to the defendant. Harm v. State, 183 S.W.3d 403,
406 (Tex. Crim. App. 2006); see also Brady v. Maryland, 373 U.S. 83, 87 (1963).
To establish a Brady violation, a defendant must show that (1) the prosecutor failed
to disclose evidence, (2) the evidence is favorable to the accused, and (3) the
evidence is material. Harm, 183 S.W.3d at 406.
Prosecutors have a duty to learn of Brady evidence known to others acting on
the State’s behalf in a particular case. Id. Brady does not require prosecutors to
disclose exculpatory information that the State does not have in its possession and
that is not known to exist. Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim. App.
2011); Harm, 183 S.W.3d at 407. Similarly, the State does not have a duty to disclose
the information if the defendant was aware of the exculpatory evidence or could
have accessed it from other sources. Pena, 353 S.W.3d at 810. Under Brady,
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“evidence is material only if there is a reasonable probability that, had the evidence
been disclosed to the Defense, the result of the proceeding would have been
different.” U.S. v. Bagley, 473 U.S. 667, 682 (1985). A “reasonable probability” is
one that undermines confidence in the outcome. Id.
Here, Ebert knew that the State possessed a copy of the video recording from
her 2014 arrest, and so she was aware of the information. In fact, Ebert’s counsel
knew to object to Reece’s testimony on the basis that the State had not turned over
a body cam recording of the incident. Therefore, Ebert had prior knowledge of the
existence of the recording. The evidence about which Ebert complains does not fall
within the Brady rule. We overrule Ebert’s second issue.
Issue Three: Burden of Proof in Suppression Hearing
In her third issue, Ebert complains that the trial court created reversible error
when it placed the wrong burden of proof – clear and convincing – on the wrong
party – the defendant – in a hearing on a motion to suppress the evidence obtained
as a result of Baker’s traffic stop.
At the beginning of the motion to suppress hearing, Ebert refused to stipulate
a warrantless arrest:
[Defense Counsel]: So we’re not going to stipulate that it was a
warrantless arrest.
[Trial Court]: Was there a warrant? Do you think there was a warrant?
[Defense Counsel]: No, we’re just not gonna stipulate.
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[Prosecutor]: You’re not gonna stipulate –
[Defense Counsel]: -- to it since it’s our motion.
[Trial Court]: Sure. Okay. So let’s – let’s play it out. All right. We will
– it’s on the record that you do not stipulate to it being a warrantless
arrest. All right.
The State argued that because the arrest was warrantless, and the State
stipulated that it was warrantless, it was the State’s burden to prove probable cause,
and the State needed to go first in the hearing. Ebert’s counsel disagreed, arguing
that “we have not stipulated that it is a warrantless arrest, so it’s – we get to go first.
That’s how it works.”
The trial court eventually agreed that Ebert could proceed first and noted that
“[t]he burden of proof is on the defendant. The standard is clear and convincing.”
The trial court asked the parties if there was “[a]ny disagreement there?” and neither
party objected. Ebert then questioned Baker.
After hearing evidence from both Ebert and the State, the trial court made its
ruling:
Based on the evidence I saw, based on the testimony that I heard, I’m
gonna deny your motion to suppress the stop. I’m gonna find that there
was probable cause under the code for speeding and probable cause for
following too closely for him to make a traffic stop on this vehicle.
“To suppress evidence on an alleged Fourth Amendment violation, the
defendant bears the initial burden of producing evidence that rebuts the presumption
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of proper police conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
2005). “A defendant satisfies this burden by establishing that a search or seizure
occurred without a warrant.” Id. “Once the defendant has made this showing, the
burden of proof shifts to the State where it is required to establish that the search or
seizure was conducted pursuant to a warrant or was reasonable.” Id. A
preponderance of the evidence standard applies in a motion-to-suppress setting. York
v. State, 342 S.W.3d 528, 543 (Tex. Crim. App. 2011).
“Where there is no stipulation, as in this case, the defendant must produce
some evidence that the search or seizure was warrantless.” Glenn v. State, 475
S.W.3d 530, 536 (Tex. App.—Texarkana 2015, no pet.) Because Ebert did not
stipulate that the arrest was warrantless, the trial court correctly allowed her to
question the witness first as she had the initial burden of proof.
We agree with Ebert, however, that the trial court incorrectly indicated that
the burden of proof was clear and convincing evidence. That said, even assuming
without deciding that the trial court erred, we will not reverse the conviction unless
the record reflects that Appellant’s substantial rights were affected. See Tex. R. App.
P. 44.2(a); Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim. App. 2008); Jones v.
State, 119 S.W.3d 766, 777 (Tex. Crim. App. 2003). The admission of evidence
obtained in violation of the Fourth and Fourteenth Amendments is constitutional
error. See Hernandez v. State, 60 S.W.3d 106, 106 (Tex. Crim. App. 2001)
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(discussing Fourth Amendment); Sears v. State, 91 S.W.3d 451, 453, 455 (Tex.
App.—Beaumont 2002, no pet.) (characterizing violation of Fourteenth Amendment
as constitutional error and requiring 44.2(a) analysis). Accordingly, under Rule
44.2(a) we must reverse the conviction unless we determine beyond a reasonable
doubt that the trial court’s denial of suppression did not contribute to conviction or
punishment. See Tex. R. App. P. 44.2(a). For the reasons discussed below, we
conclude the error, if any, was harmless.
That said, the record shows that the trial court denied Ebert’s motion to
suppress, not because Ebert failed to prove that the search was warrantless, but
because the State met its burden to prove there was probable cause for the traffic
stop. Implicit in the trial court’s ruling is a finding that Ebert met her burden—
incorrectly elevated as it was—to prove that the arrest was made without a warrant.
After the trial court made this implicit finding, the burden shifted to the State to
prove an exception to the warrant requirement, and any further discussion of Ebert’s
burden became moot. No harm to Ebert could have resulted from a finding that she
met her burden of proof (even an erroneously high burden of proof) that the search
and seizure was warrantless, thereby successfully shifting the burden to the State to
prove probable cause. We conclude the trial court’s error was harmless. See Latimer
v. State, 659 S.W.3d 135, 141 (Tex. App.—Beaumont 2022, no pet.). We overrule
Ebert’s third issue.
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Issue Four: Motion to Suppress the Traffic Stop
In her fourth issue, Ebert complains that the trial court erred in failing to
suppress the traffic stop, arguing that Baker did not have reasonable suspicion that
Ebert violated the Transportation Code or was driving while intoxicated. Ebert
argues that Baker’s affirmative responses to questions on cross-examination asking
whether Ebert was driving as a “normal” and a “sober” person would negate the
statutory violations. She also claims that Baker’s “failure to stop Ms. Ebert
immediately undermines the State’s claim of reasonable suspicion.”
We review rulings on motions to suppress using a bifurcated standard of
review. Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018). In a
hearing on a motion to suppress, “the trial judge is the sole trier of fact and judge of
credibility of witnesses and the weight to be given to their testimony.” Id. at 190.
When the trial court does not make any explicit findings of fact in making its ruling,
the reviewing court “infers the necessary factual findings that support the trial
court’s ruling if the record evidence (viewed in the light most favorable to the ruling)
supports these implied fact findings.” State v. Garcia-Cantu, 253 S.W.3d 236, 241
(Tex. Crim. App. 2008). For that reason, we afford almost total deference to the trial
court’s ruling when it hinges on findings of historical facts, particularly when it
involves decisions about credibility and demeanor. Id. We apply this highly
deferential standard “regardless of whether the trial court has granted or denied a
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motion to suppress[.]” By using this standard, we give the trial court’s ruling the
strongest legitimate view of the evidence, and in the absence of explicit findings, we
review the record to determine whether the evidence supports the trial court’s ruling
denying the motion. Id.
“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.” Jaganathan v. State, 479 S.W.3d 244, 247 (Tex.
Crim. App. 2015) (internal quotations omitted) (citation omitted). This test “is an
objective one that focuses solely on whether an objective basis exists for the
detention and disregards the officer’s subjective intent.” State v. Kerwick, 393
S.W.3d 270, 274 (Tex. Crim. App. 2013). A court determines whether reasonable
suspicion exists based on “the totality of the circumstances” leading to the stop. Id.
Here, the trial court properly denied Ebert’s motion to suppress on the basis
that Ebert committed the traffic violations of speeding and following too closely.
Baker testified that he paced Ebert’s vehicle as it travelled sixty-seven miles per hour
in a forty-five miles per hour zone on the I-45 feeder road. Furthermore, Baker
observed Ebert following a slow-moving truck at a distance of three car lengths.
Baker’s dash cam video corroborated his testimony that Ebert followed another
vehicle too closely. Deferring to the trial court’s determination that Baker’s
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testimony was credible, we conclude the trial court did not abuse its discretion in
denying Ebert’s motion to suppress the traffic stop. We overrule Ebert’s fourth issue
on appeal.
Issues Five and Six: The Oath Requirement for the Search Warrant Affidavit
In her fifth issue, Ebert complains that the trial court abused its discretion in
denying her motion to suppress the blood evidence. Specifically, Ebert complains
that the trial court erred in finding that Baker swore to the truth of his affidavit in
support of the search warrant, thereby “disregarding the relevant evidence and
basing its ruling on speculation rather than fact.” She complains that the trial court
changed its rulings when there was no additional evidence for such a change in its
ruling. In her sixth issue, Ebert alternatively argues that the trial court misapplied
the law by treating Baker’s signature as sufficient and by speculating that a belated
oath could validate the warrant.
In the hearing on the motion to suppress, Baker initially testified that he signed
the incorrect line and that Gordon Dudley, an investigator with the District
Attorney’s Office, called him to let him know. Baker testified that Dudley
administered an oath to him. Baker did not recall the exact wording of the oath, but
he testified “[t]hat I’m not lying on this.” Ebert argued that Baker’s body-worn
camera of the recording of the events did not corroborate his testimony that he swore
to the truth of the affidavit because on Baker’s body camera, there is no oath taken.
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Baker testified that he “took the oath on the phone in the back of the hospital.” Baker
doesn’t remember what was said, but he responded, “Yes.” When defense counsel
asked Baker if the oath was “before or after you fixed your mistake on this
affidavit[,]” Baker responded, “So I made it, sent it to Dudley. He called me and
said, ‘You messed up.’ Gave me the oath on the phone and then signed that new
paper and sent it to me to review, and then I sent him the new copy.” Baker’s body
camera from the hospital was admitted as Defense Appellate Exhibit 4.
Baker said that when he was on the phone with Dudley, he conveyed to
Dudley that Baker was swearing that the affidavit was true. Baker believed that he
was under oath and was subject to perjury if he said anything that was false when he
signed the document. Baker’s body camera only recorded his side of the
conversation, and Dudley’s side of the conversation was inaudible. When Baker sent
the affidavit to Dudley, he was under the impression that he was under oath and that
he was swearing an oath to Dudley as a peace officer. On Baker’s body camera,
Baker can be heard telling another Conroe police officer at the hospital, “Dudley
said he would just swear it over the phone and I said sweet.” Throughout Baker’s
testimony, he consistently testified that he swore to the truth of the affidavit.
After hearing Baker’s testimony and arguments from Ebert and the State, the
trial court denied Ebert’s motion to suppress the blood based on Ashcraft v. State,
No. 03-12-00660-CR, 2013 WL 4516193 (Tex. App.—Austin Aug. 20, 2013, no
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pet.) (mem. op., not designated for publication). The trial court made a finding that
“there is no support of [the warrant] being sworn via the telephone conversations
that have been heard in this court, but the support comes from a conversation
between the Conroe officers that are both at the hospital and that Dudley said that it
could be sworn over the phone.”
When Baker’s testimony continued the following day, Baker testified that he
asked Ebert for consent for a blood draw and Ebert refused. Ebert then re-urged her
motion to suppress the warrant and the blood, arguing that a sworn affidavit is
different from an oath. The trial court noted that it made a factual finding that Baker
testified to taking an oath; that no oath was heard on the body camera; and that Baker
made a reference to Dudley’s saying the oath could be done over the phone. The trial
court denied Ebert’s motion. Ebert then asked for a continuance to subpoena Dudley
to see if he administered the oath, and the trial court ordered the State to bring in
Dudley.
Dudley testified that he has no independent recollection of giving Baker an
oath over the phone on January 19, 2024. Dudley has administered the oath over the
phone over a hundred times. He usually asks the affiant, “Does your signature
indicate you’re swearing to the truth of the affidavit.” The defense attorney noted
that it took Baker about 4.3 seconds to recite the oath. Dudley testified he requires
some kind of affirmative response by the affiant. Dudley said that it did not appear
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that he administered the oath in the first phone call to Baker. Dudley agreed that after
listening to both phone calls on Baker’s body camera, it “would be a fair
assessment[]” that Dudley did not administer an oath over the phone “[s]olely from
one side of the conversation[.]” Dudley added, “I can’t tell you for sure without
having heard my side of it.” Dudley testified that his “signature indicates that I
believed the officer acknowledged the solemnity and swore to the affidavit[]” and
that he “would not have affixed my signature as the witness if I were not confident
that Officer Baker had understood and acknowledged the solemnity of the affidavit
he had signed.”
The State represented to Dudley that there was one additional phone call from
the scene in this case which is not shown on Baker’s body camera. Dudley agreed
that it was possible during that initial communication that Dudley indicated to the
officer that he would be swearing him, especially with an officer whose voice he is
able to recognize over the phone, such as Officer Baker. When the State played
Baker’s body camera, near the fifty-minute mark, Dudley observed that he may have
stated that he would take the officer’s signature as an oath, just before Baker
responded, “Okay, sounds good.”
Officer Baker was recalled and testified that he believed the part on the body
camera where Baker states, “All right, yeah” is when he affirmed to an oath. The
trial court then made a finding of fact that there was a 9.11 second pause between
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the final conversation and Baker’s stating, “All right, yeah” on the body camera. The
trial court also recalled that Dudley’s testimony “was that it was less than that for
him to recite the oath.” The trial court initially stated that the burden of proof was
clear and convincing but ultimately concluded that “preponderance of the evidence
is the standard.”
The trial court overruled Ebert’s motion to suppress the blood. The trial court
ruled that it “cannot say one way or the other what was being heard or said on the
other line[]” and that “the only person in this courtroom who says that he had sworn
off is under oath, and he is the only one who knows what was said on the other line.”
The trial court also noted there was a 9.1 second delay and based on Dudley’s
testimony of the time that it took for him to administer the oath, “it’s within that 9.1
seconds.” The trial court stated that it was “at 50/50, which is not the
preponderance[.]”
“One of the most fundamental tenets of search and seizure law is that a search
warrant must be supported by a probable-cause affidavit that is sworn ‘by oath or
affirmation.’” Wheeler v. State, 616 S.W.3d 858, 863 (Tex. Crim. App. 2021)
(quoting Tex. Const. art. I, § 9). “This oath or affirmation requirement is so critical
that our Legislature codified it numerous times in the Texas Code of Criminal
Procedure.” Id. (citing six provisions of the Code, including art. 18.01(b), “A sworn
affidavit setting forth substantial facts establishing probable cause shall be filed in
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every instance in which a search warrant is requested.”). “[I]t is well established
under Texas law that a search warrant cannot properly issue without a probablecause affidavit made under oath.” Id. at 864.
“An oath is any form of attestation by which a person signifies that he is bound
in conscience to perform an act faithfully and truthfully.” Id. (internal quotations
omitted) (quoting Vaughn v. State, 177 S.W.2d 59, 60 (Tex. Crim. App. 1943)).
“Texas law has always required that the oath must be made ‘before’ or in the
presence of another to convey the solemnity and critical nature of being truthful.”
Id. (quoting Clay v. State, 391 S.W.3d 94, 98–99 (Tex. Crim. App. 2013)). Indeed,
the Court of Criminal Appeals “has held for the better part of a hundred years that,
before a written statement in support of a search warrant will constitute a ‘sworn
affidavit,’ the necessary oath must be administered ‘before’ a magistrate or other
qualified officer.” Clay, 391 S.W.3d. at 99 & n.18 (collecting cases dating back to
1929).
The Court of Criminal Appeals recognizes that “certain types of procedural
irregularities may not affect the validity of a search warrant,” but it has been
“unwavering in emphasizing that the oath requirement is essential.” Wheeler, 616
S.W.3d at 864. “Thus, an officer’s failure to take the oath and swear to the facts of
his probable-cause affidavit renders defective any search warrant issued on the basis
of the unsworn probable-cause affidavit.” Id.
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“A defendant seeking to suppress evidence obtained pursuant to a search
warrant has the burden of proving, by a preponderance of the evidence, that the
evidence was obtained in violation of his Fourth Amendment Rights.” State v.
Huynh, 683 S.W.3d 803, 814 (Tex. App.—Houston [1st Dist.] 2023, no pet.). Thus,
Ebert had to prove by a preponderance of the evidence in the motion to suppress
hearing that the probable cause affidavit was not sworn by Baker. Here, the trial
court found that Ebert did not meet this burden so the question for this Court is
whether the testimony elicited during the suppression hearing supported the trial
court’s finding.
At the suppression hearing, Baker consistently testified that he swore to the
affidavit during a telephone conversation with Dudley, even though there was some
disagreement about the exact point in time he swore to the affidavit. Dudley testified
that it was his custom and practice to administer an oath during a telephone
conversation with an affiant and to require an affirmative response, but that he did
not specifically remember administering an oath to Baker on January 19, 2024.
Dudley testified he would not have affixed his signature if he did not believe that
Baker took the oath. Baker’s body camera only captured Baker’s side of his
conversations with Dudley, but Baker can be heard on body camera telling another
Conroe police officer that Dudley told Baker he would swear the oath over the
phone. The trial court also noted that the length in pause in the phone conversation
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between Baker and Dudley where Baker testified he believed he gave the oath was
consistent with the amount of time Dudley testified that it takes for him to give the
oath. In light of this testimony, we conclude the trial court did not abuse its discretion
in finding that Ebert failed to prove the absence of an oath by a preponderance of the
evidence. We overrule Ebert’s fifth issue.
In Ebert’s sixth issue, she argues that the trial court misapplied the law by
treating Baker’s signature as sufficient and that a belated oath could validate the
warrant. Given our resolution in issue five, we need not address Ebert’s sixth issue.
Issue Seven: Request for an article 38.23 Jury Instruction
In her seventh issue, Ebert complains that she was entitled to an article 38.23
instruction on whether there was probable cause to arrest Ebert. During the charge
conference, Ebert argued that she was entitled to such an instruction because she
performed well on the standardized field sobriety tests, she was acting like a normal
and sober person, and she was able to collect her items and thoughts like a normal
person. The trial court denied the request.
Texas Code of Criminal Procedure article 38.23(a) states:
(a) 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.
In any case where the legal evidence raises an issue hereunder, the jury
shall be instructed that if it believes, or has a reasonable doubt, that the
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evidence was obtained in violation of the provisions of this Article, then
and in such event, the jury shall disregard any such evidence so
obtained.
Tex. Code Crim. Proc. Ann. art. 38.23(a). “The purpose of the Article 38.23
instruction is to enable the jury to disregard unlawfully obtained evidence.” Olsen v.
State, 606 S.W.3d 342, 349 (Tex. App.—Houston [1st Dist.] 2020, no pet.). To be
entitled to an article 38.23(a) instruction, “the defendant must show that: (1) an issue
of historical fact was raised in front of the jury; (2) the fact was contested by
affirmative evidence at trial; and (3) the fact is material to the constitutional or
statutory violation that the defendant has identified as rendering the particular
evidence inadmissible.” Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App.
2012). “When a disputed, material issue of fact is successfully raised, the terms of
the statute are mandatory, and the jury must be instructed accordingly.” Id. “Where
the issue raised by the evidence at trial does not involve controverted historical facts,
but only the proper application of the law to undisputed facts, that issue is properly
left to the determination of the trial court.” Id.
“A defendant’s right to the submission of jury instructions under article
38.23(a) is limited to disputed issues of fact that are material to his claim of a
constitutional or statutory violation that would render evidence inadmissible.”
Madden v. State, 242 S.W.3d 504, 509 (Tex. Crim. App. 2007). “The disputed fact
must be an essential one in deciding the lawfulness of the challenged conduct.” Id.
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at 511. “To raise a disputed fact issue warranting an article 38.23(a) jury instruction,
there must be some affirmative evidence that puts the existence of that fact into
question.” Id. at 513. “In this context, a cross-examiner’s questions do not create a
conflict in the evidence, although a witness’s answers to those questions might.” Id.
Baker testified, and his dashcam confirmed, Ebert’s erratic and unsafe driving.
Baker further testified that he observed an opened wine bottle and spilled wine on
Ebert’s floorboard; her speech was slurred; he detected the odor of alcohol on her
breath; he observed six out of six clues of intoxication on the horizontal gaze
nystagmus test; he observed five out of eight clues on the walk and turn test; and he
observed one of four clues on the one-leg stand test. Baker testified that based on the
totality of the circumstances, he believed Ebert was intoxicated. Ebert argues the
record contains affirmative evidence creating a material issue of historical fact
because on cross-examination Baker acknowledged that Ebert did “pretty good” on
certain aspects of the field sobriety test and at times drove or behaved like a “normal”
and like a “sober” person. We disagree.
Despite Baker’s concessions on cross-exam, Baker never backtracked from
his opinion that Ebert was intoxicated based on the totality of the circumstances. See
id. at 515 (“Appellant extensively cross-examined Officer Lily on these facts, but
the officer never admitted that he was wrong about appellant’s nervous behavior.”).
Defense counsel’s cross-examination did not affirmatively contradict any of the
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circumstances listed by Baker during direct examination in support of his opinion;
it merely brought to light additional circumstances not previously mentioned. See
Olsen, 606 S.W.3d at 350 (“[Officer’s] statement at one point that Olsen appeared
to have the normal use of her physical and mental faculties based on his observation
of Olsen’s condition does not contradict the clues of intoxication she showed on the
standardized field sobriety tests.”).
Here, the historical facts were not in dispute; rather, some historical facts
tended to support Baker’s opinion that Ebert was intoxicated, and other historical
facts tended to undermine that opinion. Ebert argues, “The State’s case depended on
Baker’s characterization of her performance as impaired, while his own admissions
to the jury supported the Defense’s contention that she was not.” But in the context
of article 38.23, the issue was not whether Ebert was driving while intoxicated; the
issue was whether, based on the totality of the circumstances, there was probable
cause to arrest Ebert for driving while intoxicated.
“[P]robable cause for a warrantless arrest exists when facts and circumstances
within the officer’s knowledge [or] about which he or she has reasonably trustworthy
information are sufficient to warrant a person of reasonable caution to believe that
an offense was or is being committed.” Torres v. State, 182 S.W.3d 899, 901 (Tex.
Crim. App. 2005) (overruling Castillo v. State, 818 S.W.2d 803 (Tex. Crim.
App.1991) “to the extent that it requires both kinds of information to support
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probable cause.”). “The test for probable cause is an objective one, unrelated to the
subjective beliefs of the arresting officer, and it requires a consideration of the
totality of the circumstances facing the arresting officer[.]” Amador v. State, 275
S.W.3d 872, 878 (Tex. Crim. App. 2009) (citing Maryland v. Pringle, 540 U.S. 366,
371 (2003)).
Absent a dispute about the existence of a material fact, the question of whether
the totality of the facts amounts to probable cause for an arrest is not a question for
the jury. See Madden, 242 S.W.3d at 511 (“The jury [] is not an expert on legal
terms of art or the vagaries of the Fourth Amendment. It cannot be expected to decide
whether the totality of certain facts do or do not constitute ‘reasonable suspicion’
under the law. . . . Even many experienced lawyers and judges disagree on what
constitutes ‘reasonable suspicion’ or ‘probable cause’ in a given situation.”); see also
Castillo v. State, No. 09-23-00334-CR, 2025 WL 3020074, at *10 (Tex. App.—
Beaumont Oct. 29, 2025, pet. ref’d) (mem. op., not designated for publication);
Cuellar v. State, No. 04-19-00385-CR, 2020 WL 4809752, at *4 (Tex. App.—San
Antonio Aug. 19, 2020, no pet.) (mem. op., not designated for publication).
In the context of determining whether there was probable cause to arrest Ebert,
there was no disputed issue of material fact for the jury to decide; instead, the issue
was whether all the facts, including those brought to light during defense counsel’s
cross-examination of Baker, added up to probable cause. Therefore, the question was
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not one of fact, but of the application of law to fact, and the trial court did not err in
refusing to submit an instruction under article 38.23(a). See Robinson, 377 S.W.3d
at 719. We overrule Ebert’s seventh issue.
Conclusion
Having overruled all of Ebert’s issues, we affirm the trial court’s judgment.
AFFIRMED.
KENT CHAMBERS
Justice
Submitted on April 23, 2026
Opinion Delivered August 26, 2026
Do Not Publish
Before Johnson, Wright and Chambers, JJ.
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