### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00110
- CR

The State of Texas , Appellant

v. Arthur Guilbault , Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF COMAL COUNTY NO. 2017CR1006 , HONORABLE CHARLES A. STEPHENS II , JUDGE PRESIDI NG

O P I N I O N
A jury convicted Arthur Guilbault of driving while intoxicated

. Se e Tex. Penal Code § 49.04(a ) , (b) . T he trial court assessed Guilbault ’ s punishment at 180 d a y s ’ confinement in the county jail, see id. § 12.22 , but suspended the impo s ition of sentence and placed him on community supervision for ten months , se e Tex. Code Crim. Proc. art. 42A.05 3

. Guilbau lt fi led

a motion for new trial “ in the in terest of justice

. ” In h is motion and argument at the new - trial hear ing , Guilbault complai n ed that he was deprived of a fair trial due to “ disingenuous ” testimony from the arresting officer and that the State failed to correct the false or misleading testimony

. The trial court signed an order grant ing the motio n for new t rial , which th e State

a

ppeal s
. See id. art. 44.01(a)(3)

. The State contend s that Guilbault ’ s motion and hearing argument presented only one issue that th e t rial court could proper ly co nsider a n d that the trial court abused its discretion by granting the new trial

. We will re v erse the trial court ’ s order

.2 BACKGROUND Evidence at trial showed that New Braunfels Police Department Officers John Lopez and Z achary Kory we re on traffic patrol near m idnight o n November 2, 2016 , when
O fficer Lo pez noticed a pick up truck tra veling on I H

- 35 that appeared to have only a n “ LED light bar ” and not its headlights illuminated

. At 11:45 p.m., t he officers conducted a traffic stop of the truck, driven by a man later identifie d as Guilbault

. The patrol car ’ s d as h

- cam vi de o of the
sto p was admi t ted into evidence. Guilbault was the driver and the only occupant of the truck. Officer Kory told Guilbault that he was being stopped because of the “ light that was in the front ” and said, “ It looks cool, but y ou ne ed to have your headlights on. ” Whil e Officer Kory called for a driver ’ s license check , Officer Lopez spoke wit h Guilbault

. Officer Lopez not iced that Guilbault had an

o d o r o f alcohol emitting from his breat h and body, his eyes appeared glossy and bloodshot , h is

s peech was slurred , and he “ s waye d ” while speaking

— all of which Officer Lopez considered signs of intoxication. He asked Guilbault what he had to drink that night. Guilbault initially replied that he had a “ cou ple of beers ” and that he s tarted drinking abo ut 7 :00 p.m. Whe n asked

w h at kind o f beer he had and how many , Guil b ault stated that he had only “ one quart , ” a “ 32

ounce ” Bud Light between 7 :00 p.m. and 8 :00 p
. m
. Officer Lopez then cond ucted sta ndard ized field

- sob ri ety tests on Gui lb ault

. Officer Lopez test ified that he had b een a certified peace officer for six ye ars , had been trained and certified to administer standardized field

- sobriety tests since 2013 , and had administered th o se tests appr ox imately 200 times du ring his career. He a lso testified th a t d riving is a divide d

- attention task and that the field

- sobriety tests were designed as divided

attention tests.3 During his field

- sobriety test ing , Guilbault exhibited s ix of the six possible cl u es on the h orizontal

- g aze - n ystagmus (HGN) test

— including lack o f sm ooth pursuit of th e eyes, sustained nystagmus at maximum deviation, and onset of nystagmus prior to forty

- five degrees

— and swayed during this test . He exhibited six of the eight possible clues on the walk

and

- turn test, including inabi lity to maintain the starting pos it ion , stepping off the line during the walking portion, not touching heel to toe, using his arms for balance, pausing during the test, and making an improper turn. Additionally, G uilbault exhibited three of the four possi ble clues on the one - leg

- stand te st, i n cluding putting his foot down during the test, swaying, and using his arms for balance.
A fter co ncluding his investigation, Officer Lopez determined t hat Guil bault had been driving while intoxic ated and had lost the normal use of h i s m ental or phys ical f aculties due
to alcohol consumption . Officer Lopez arrested Guilbault for DWI and handcuffed hi m. Guilbault asked if the police could “ just follow [him] bac k to the ho tel room ” where he was staying. Officer Lopez s aid that they co u ld not do that.
H e t hen read the “ DIC

- 24 ” statutory warn ing to Guilbault , ex plain ing the implications for his driver’s license if he refuse d to provide a breath or blood sample

. When Guilbault refused to provide either sample , Officer Lopez sought an d ob tained a search wa rra nt for Guilbault ’ s blood. The blood draw was conducted at a hospital at approximately 1:53 a.m
. , just over two hour s after the stop. Subsequent testing of tha t blood showed that Guilbault h ad a blood

- alcohol content (BAC) of 0.08 7 g ram s of alc ohol per 10 0 mill iliters of blood , a resu lt exceeding the .08 legal limit for alcohol concentration

. See Tex. Penal Code § 49.0 1 ( 2 ) ( B )

. During trial, the forensic sci entist with the Texas Department of Public Safety who ana lyzed the bloo d t est ified that “ we ’ r e 99. 7 percent confident ” the “ [m ]easure result is4 .087

. ” He exp lained that the re is a plus

- and

- mi nus range of where a sample could test , if it were tested many t imes, and that in this case, the entire range above and b elow the .087 tes t r esult is greate r tha n the .08 legal definition of intoxication in Texas. Additionally , he testified that based on his traini ng and ex perience, he wou ld not expect someone who had consumed only 32 ounces of a five percent beer to hav e a BAC of .087 s ix hou rs later , and h e had “ no person al experience of something like that occurring

. ”
D e f e n s e c o u n s e l conducted a lengthy c r o ss - examin ation of O fficer Lopez duri ng trial

. Part of his questioning r el i ed heav ily on excer pts from a 2007 study on the H GN t es t conducted by the N ational Highway Transportation and Safety Administration (NHTSA)

. Based on th ose excerpts, d efense counsel suggested that the 2007 stud y “ call s into question the valid ity of the HGN as an indi cator of intox ica tio n , ” but Officer Lopez disagreed. 1 Over the State ’ s object ion , the trial court granted defense counsel ’ s re quest to take judicial notice of th e 2007 study a s a “ learned trea tise

. ” See Tex . R. Evid. 80 3 ( 18 )

. The 2007 s tudy addressed the administr ati on of the HGN test

— specifi cally the lack

- of

- smoo th

- pursuit comp onent

— and w hether the movement of “ the stimu l us a little bit faster, maybe had it a litt le bit further from the person’ s eye or a l ittle bit higher or lower ” would affect the r esults of the HGN te st

. Al though no ne of t he test subject s in th e study had a BAC of
0.0 , one of them had a BAC o f 0.016 and showed four clu es on the lack

- of

- smooth

- pursuit component of the HGN test

. Officer Lopez noted that lack of smooth pursuit is onl y one aspect

1 The 2007 stud y actu ally concl u ded that “ HGN as used by law enfo rcemen t is a robust procedure ” and that “ [ t ] he study findings provide no ba sis for co ncluding that the validity of HGN is compromised by min or procedural variations. ” D efen se counsel ack nowledged during the moti on - for

- new - trial h ear ing that the study ’ s co nclusi on “ was, hey, slightly deviating in some particulars does not affect the validi ty of the result. ”5 o f t he t hree

- batter y HG N test administered to determ ine whether someone is intoxicat ed , that his training requires evalu ation of the totality of the circumstances in determining whether so meone is intoxicated , and th at the HGN test is not his sole basis for de ter mining intoxicat ion. R elevant
h ere, h e recal led smelling an odor of alcohol from Guilbault, seeing his blood shot and glassy eyes, and noticing his unstead ines s on his feet . B ase d on his training and experience, Officer Lopez opi ned th at Guilbault w as int oxicated and had an alc ohol concentration abo ve the legal limit of .08

. Defense counsel further cross

- examined Officer Lopez about field

- sobriety

- test instructions in an out

- of

- date editi on of an NHTSA manual from 2000 . Officer Lopez testified tha t h e w as trained in fi eld

- sob riety t esting in 201 3 and not using the 2000 manual. H e declined
t o evaluate his administration of the field

- sobriety tests to Guilbault in 2016 based on t he instructions from a 2000 manual that differed fr om his train ing. Of fic er Lopez stated his belief that the field

- sobrie ty

- test instructions had changed between 2000 and 2013 but that he could not be sure because he did not have his copy of the ma nual for comparison. Finally, defense counsel cross

- exa mined Officer Lop ez a bout s everal perceived dr ivin g infractions by Offic er Kory while transpor ting Guilbault from the hospital to the jail. Officer Lopez responded that police vehicles , as authorize d em ergency vehicles, were considered exempt from t raffic laws regardless of w he ther an emergency si tuation existed, so long as t he officer was “ us ing good judgment in the interest of public s afety. ” After the State objected to the relevanc e of this questioning in the DWI prosecution , t he trial court paused the proceedings a nd
prov ided t he prosecutor wi t h prov isions of th e Texas Tr ansportation C ode concerning operation of aut horized emergency veh i c les

. See Tex. Transp. Code § § 546.001

- .002 (addressing operation of aut horized emergency vehicle when handling certa in emergency situ ati ons, w hen6 directing or divert ing traffic, or when c onducting police es cort) ; see also id. § 541.201 (defining

“ authorized emergency veh icle ” to include “ police vehicle ” )

. Officer Lopez reviewed these statutes during the break. When th e jury recon vened , O fficer Lopez testified that h e “was incorrect ” and acknowledged that police officers like Officer Kory are not exem pt from traffic laws unless they are in an emergency situati on
. During closing, defense counsel revisited the se three to pics of his cross

- ex aminat ion , concluding that Of ficer Lopez “ lied ” to the jury and “ is an embarrassment and offens ive to everybody who has any kind of conscience in this courtroom. ” After considering the evidence presented during trial , the jury found G uilbault guilty o f D WI as charged . T he tr ial cou rt assessed Guilbault’ s punishment at 180 days’ confinement in the county jail but suspended the imposition of sentence and placed him on

commu nity supervision fo r ten months . Guilbault filed a motion for n ew trial , which t he trial
court gr anted af ter a n on - evidentiary hearing

. The State request ed entry of fin dings of fact and conclusions of law but the trial court failed to make them. This appeal followed.

DISC USSION The State contends that Guilbault presented only one iss ue tha t the trial cour t could properly consider as the basis for a new trial

— whether the State fa iled to correct fal se or misleading testimony

— and that the trial court abused its discretion by granting t he new trial.
We agree
.7 Motion for N ew T ri al “ I n the In terest of J u stic e ” Gui lbau lt filed a motion for new trial after initially f iling his notice of a ppeal

. 2
He did not raise any of the grounds requiring a new trial in Texas Rule of Appellate Proc edure
21.3 but rather sought a new t rial in the “ inte rest o f justice

. ” 3 Hi s writte n motion omitted any ci tation to the trial record , ass erted that Officer Lopez inten ded to mislead the jury, conc l ud ed that “ Officer Lopez’ [s] disingenuous testimony served to d eprive Defendant of a fair trial , ” and stated tha t Guil bault “ presents this Moti on for New Trial and m oves the Court to grant said Motion in the interest of justice to ensure that [he] has been afforded a fair trial in accordance with the Constitution of the United Stat es, the State of Texas and all appl icable laws and

2 W e dismissed Guilbault ’ s appeal a f ter the trial court granted his motion for ne w trial

. See Guilbau lt v . State , No. 03

- 19

- 00 933

- CR, 2020 Tex. App. LEXIS 649, at *1 (Tex. App.

— Austin Jan. 23, 20 20 , no pet. ) (mem. op. , not d esignated for publication)

.
3 Tex as R ule of App ellate P rocedure 2 1.3 requires a trial cou rt to g rant a new tri al, or a new trial on pun ishment, to a defendant for any of the following reasons: (a) except in a misdemeanor ca se in which the maximum possi ble punish ment is a fine, w hen a defendant has been tried in abse nt ia or has been denied counsel; (b) when the c ourt has misdirected the jury about the law or has committed some other material error likely to injure the defenda nt ’ s rights; (c) when the ver dict has b een decided by lo t or in any manner other than a fair e xp ression of the jurors ’ opinion; (d) when a ju ror has been bribed t o co nvict or has been guilty of any other corrupt conduct; (e) when a material defense witness has been kept from court by force, thr eats, or fraud, o r when evidence tending to establish t he defendant ’ s innocence has been intentionally destroyed or withhel d, t hus preventing its production at trial; (f) when, after retiring to deliberate, the jury h as received other evidence; w hen a juro r has talked with anyone about the case; or when a juro r became so intoxicated that his or her vote wa s probably influenced as a result; (g) when the jury has engaged in such misconduct that the defendant did not rece ive a fair and impartial tria l; or (h) when the v erdict is contrary to the law and the evidenc e. Tex. R. App. P. 21.3.8 proced ures. ” A t the hearin g on the m otion for new trial, Guilbault again explained that his motion was brought on a “ more generalized, non - statutory ” basis, “ in the interest of justice ” :

I ’ d like to fir st start off by pointing out that T exas R ule [ ] of Appella te Procedu re 21.3 lists the lega l grounds for which a trial court must grant a new trial; but as we know that list is not exhaus tive. Matter of fact, my research has showed me that mo re often than n ot the motions for new trial that a re rai sed and granted have to de al with the more gener alized non

- statutory court being able to grant, quote/unquote, in the interest of j ustice. That ’ s what we ’ re bringing this Motion for New Trial under

.

“ Once a jur y verdict of guilty has been return ed, th e only way in w h ich a tria l court may undo that verdict is by way of an order granting a motion for new trial. ” In re State ex rel. Mau v. Third Court of Appeals , 560 S.W.3d 640, 647 (Tex. Crim. Ap p. 2018)

. A defendant must establish the truth of t he all egations contain ed in his motion for new trial

. King v. St ate , 502 S.W.2d 795, 800 (Tex. Crim. App. 1973)

. We rev iew a trial ju dge ’ s ruling on a motion for new trial for an abuse of discretion. ” Int ernat ional Fid. Ins. Co. v. State , 586 S.W.3d 9, 12 (Te x. Crim. App. 20 19) (c itin g Burch v. State , 541 S.W.3d 816, 820 (Tex. Crim. App. 20 17); State

v. Herndon , 215 S.W.3 d 901, 90 6

- 07 (Tex. Crim. App. 2007) )

. That discretion is n ot unbounded or unfettered. State v. Arizmendi , 51 9 S.W.3d 143, 148 (Te x. Cri m. App. 2017); S tate v. Zalm an , 400 S.W.3d 590, 59 3 (Tex. Crim. App. 2013). “ A trial judge does not have authority to grant a new trial unless the f irst proceeding was not in accordance with the law. ” Herndon , 215 S.W.3d at 907. A trial judg e may no t gr ant a new trial on mere symp ath y, an inarticulate hunch, or simply because he believes that the defendant received a r aw deal or is inn ocent. Zalman , 400 S.W.3d at 593; Herndon , 215 S.W.3d at 907; see Arizmendi , 519 S.W.3d at 148

. Generally, a t ria l judg e would not abus e his discre tion in granting a mot ion fo r new trial if the defendant: (1) articulated a valid legal claim in his9 motion for new trial ; (2) produced evidence or pointed to evidence in the trial record that substantiat ed his legal claim ; and (3) showed preju dice to his substantial rights und er the standards in Rule 44.2 of the Texas Rules of Appellate Procedure. Herndon , 215 S.W.3d at 90 9 ;

see Tex. R. App. P. 44.2 ( provid ing that non - constitutional error that does not affect substantial right s must be disreg arded ). As the Court of C ri mi nal Appeals has explained , “ t rial courts do not have the discretion to grant a new trial unless the defendant demonstrates that his first trial was seriously flawed and that the flaws ad versely affected h is sub stantial rights to a fair tr ial. ” Herndon , 215 S. W.3d at 90 9

. Further, while a judge may grant a motion for new trial “ i n the interest of justice, ”

“ ‘ justice ’ means i n accordance with the law. ” State v . Thomas , 4 28 S.W .3d 99, 105 (Tex. Crim. Ap p. 201 4); Zalman , 400 S.W.3d at 593; Herndon , 215 S .W.3d a t 907. “ I n the interest of ju stice ” is not an independent basis for gran ting a new trial to a criminal defendant

. Tho mas , 428 S.W.3d at 105 ; see Arizmend i , 519 S.W. 3d at 161 (New ell, J., concurrin g) ( no ting that

“ ‘ inte rest of justic e ’ is not a leg al clai m unto itself ” )

. “ There must be some legal basis underpinning the gra nt of a new trial, even if it is g ranted in the i nterest of justice. ” Thomas , 428 S. W.3d at 105 ; see Mau , 560 S.W.3d at 647 (no ting t hat trial court may not grant new trial,

“ eve n ‘ in t he interest of justice, ’ in the absence of some legal defect in the procee ding to justify its order ” ) ; see also State v. Trahan , No. 14

- 15

- 00472

- CR, 2016 Tex. App. LEXIS 616, at *1 9 (Tex. App.

— Houst on [14 th Dis t.] Jan. 2 1, 2016, pet. ref ’ d) (mem. op., not designated for publication) (noting that “ interest of justice ” standard does not relieve movant of his burden to satisfy evidentiary requirements of motion for new trial )

. Thus, a trial court “ does not h ave di scretion t o grant a new trial unless the defen dant shows that he is entitled to one under the law. ” Herndon , 215 S .W.3d at 907.10 When ruling on a motion for new trial that sets out a valid legal claim , a trial court should exercise its disc retion by “ bal ancing a defendant ’ s ‘ in terest of justice ’ cla im against both the interests of the public in finality and the harmless

- error standards set out in Rule 44.2. ” Id. at 90 8

. I f the defendant ’ s substantial right s were not affected , t ri al court s should not grant a new trial

. Id. “ O therwise, the phrase ‘ interest of justice ’ would have no substantive legal content but constitute a mere platitude covering a multitude of unreviewable r ulings. ” Id. “ Granting a new tria l on a ‘ non - legal or legally i nvalid reason is an ab use of disc retio n
. ’ ” Arizmendi , 519 S .W.3d
at 148 (quoting Herndon , 215 S .W.3d at 907)

.

Order Granting N ew T rial W as A buse of D iscretion
He r e, the legal basis st ated in Guilbault ’ s written moti on wa s that Officer Lo pe z ’ s “disin genuou s” testimony dep rived Guilbault of a fair trial

. During the hearing on the mo tion for new trial , Guilbault add ed that “ the State fa iled to co rrect false and /or misl eading testimony from Officer Lopez , ” which was “ th e flaw in this trial. ” N o witness testi mony or other ev idence was present ed to the trial court du ring the hearing on the motion for new trial , which consisted entirely o f counsel ’ s argument. See Tex. R. App. P. 21.7 (providing that trial court “ may recei ve evidence by affidavit or otherw ise ” a t hearing on mot ion for new trial in criminal c ases ).
G uilbault ’ s argument during the hearing rei terated hi s complaints about Officer Lopez ’ s
responses on cross - examination concerning the 2007 s tudy address ing administration of th e lack

of

- smooth

- pursuit compone nt of the HGN test , the field

- sobriety

- test instr uctions in an NHTSA manual from 20 00 , and the appli cability of a statutory exemption for perceived dr iving infractions by Officer Kory in a non

- emergen cy situation

.11 Persua ded by Gu ilbaul t ’ s argument , t h e trial court stated :
I will say that what was th e most disturbing part about that case was the officer ’ s testimony. I am not attributing that to you. But it was pretty apparent to me that he was e xtremely evasive, No. 1. I wasn ’ t sure what the ju ry w as going to do with that. I am not sure if they es tablished that the credibility was an issue or not for them. But he was very evasive. I think he was on the stand a whole day, which is about three times longer than most o fficers a re on when they ar e

— ev en if they are the f irst witness

. H e w a s o n t h e s t a n d t h e w h o l e d a y a n d I d o n ’ t kn o w t h a t I h a v e e v e r h a d t h a t

. I didn ’ t appreciate that very much from my viewpoint and I didn ’ t apprecia te the fact i n my view

— in my opinion I think h e knew exactly wha t he was saying when he was talking about whether or no t what the officer could or could not do whether it was an emergency situation or not. The fact that he even said

— what I recall is when we came back the next day he stuck wi th his te stimon y or stuck w ith that he could do ess entially whatever he wanted. O nly after I presented him with the statute thro ugh y ’ all

— through you

— was he com pelled to correct himself to avoid perhaps a perjury charge against him self. To me it was very embarras sing f or the offic er a nd I don ’ t think it ’ s something that the New Braunf els Police Department would want to hold o ut as an example how to present yours elf during the course of a trial.

. . . . His way of showing his skep ticism was not really ap propriate

. It ’ s one thing if h e says, look, I don ’ t know what that is and I ’ m sor ry I haven ’ t seen it. I recognize it

— you know, and he did crawfish in the

— all of a sudden everything that when he testified NHTSA was authoritative a nd then when he ’ s presen ted with a stud y that was c ompl eted by NHTSA he was challenging that study and it wasn ’ t

— in a way that was I guess evasive is the best way to say it. Evasive from the standpoint of simply answering the questions.

. . . I don ’ t kno w how to describe that, like I sa id oth er than simp ly b eing evasive and it was very frustrati ng.

As to O fficer Lopez ’ s testimony about the statute addressing driving a police vehicle during non

emergency situations, the trial court stated:

I heard his t estimony [during trial]

. I didn ’ t beli eve him.

. . . I ju st flat didn ’ t

— a gain, I am not

— I saw what you w ere faced with. I did not believe him. I did not believe that he knew that that was the truth when he testified the first time.

. . . To me that ’ s a basic rule t hat every officer i s goin g to know whethe r or not they12 can

— or what they can and can ’ t do. H e knew exactly what he can and can ’ t do when it comes to emergency procedures or not drivin g when it ’ s an em ergency. They have to be

— they have to

— the ir driving is like a ny o ther citi zen. When they are dr ivin g if it ’ s not an emergency. When it becomes an emergency , the rules change completely. No question about it.

The trial court concluded the hearing with it s ruling granting a ne w trial “ because of the way the officer t estified ” duri n g the trial two months earlier :

I think because of the way the of ficer testified I ’ m going to grant it. We ’ re goi ng to do it again. I ’ m not sure the results will be the same or different, but I ’ m going to give the officer a chance to red eem himse lf. A t least as far a s I ’ m concerned h e ’ s not going to be in front of a jury

— will be a different jury, but I ’ ll give him a chance to redeem himself.

1. Trial court re - evaluate d weight and credibility of evidence presen ted during trial The State con tends that if the tria l court grant ed a ne w trial base d on its own determ ination a bout the credibility of Officer Lopez ’ s testimony durin g the trial , it abused its discretion

. Guilbault responds, without citation to author ity , that “ [a]kin to a motion to suppre ss hearing , the trial court is the s ole trier of fact, the judge of the credibility of the witnesses and the weight to be given the ir testimony when determining the grounds for a new trial. ” We agree with the State.
Or dinarily, “ [ t ] he trial cour t , as factfinder, is t he sole judge of witne ss credibi lity at a hearing on a motion for new trial with respect to both live testimony and affidavits. ” Dixon
v. State , 595 S.W.3d 216, 224 n.24 (Tex. Crim. App. 2020) ( quotin g Okonkwo v. State , 398 S.W.3d 68 9, 694 (Tex. Crim. App . 2013) ) ; see Ford v. State , 129 S.W.3d 5 41, 548 (Tex

. App.

— Dallas 2003, pet. ref’d) ( noting that trial court is “ sole judge of the credibility of the testifying witnesses at the hearing on [defendant] ’ s motion for new trial ” ). But h ere , n either13 w itness es nor affidavits were p resented i n support of Guilbaul t ’ s mot ion

. Thus, during the motion for new trial hearing , the trial court re - evaluat ed Officer Lopez ’ s credi bility based

e xclusively on the eviden ce presented to the jury duri ng t rial

. C f. Tex

. Code C rim. Proc. art.
38.04 ( providing , in relevant part, t hat “ [t]he jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony ” )

. However, “ [ w ] hether a witness is credible is a fact questi on that goes to the weight of the witnes s ’ s testimony. ” Smith v. State , 490 S.W.2d 902, 907 (Tex. App.

— Corpus Christi

– Edinburg 1972 , no pet

. )

. “ [ T] he jury is the exclusive judge of the facts, credibility of the witne sses, and weight to be given to the te stimony

. ” E x pa rte Thomas , 638 S.W.2d 9 05, 907 (Tex. Crim. App. 1982)

. Thus , “ i n a jury trial, the jury, not the court, is the fact finder. ” Else

v. State , 666 S.W.2d 251, 253 (Tex. App.

— Dallas 1984, pet. ref’d)

. Guilbault had the burden o f sh owing his entitlem e nt to a new trial under the l aw
. See Herndon , 215 S.W.3d at 907. He has not done so he re
. During the new

- trial hearing, h e present ed no ad ditional testimony or affi da vit evidence supporting his challenge to Officer Lopez ’ s cred ibility

. T h e tr ial court substitut ed its judgment fo r th at of the jury b y ruling on t he credibility of Officer Lopez’s testimony using only the evide nce presented to the j ury during trial and not any evidence presente d to the trial court at the new - trial h eari ng
. A t the end of the hea ring, t he t rial court explained that it was g ranting a new trial “ because of the way the officer testified ” and “ to give the officer a chance to redeem himself

. ” Granting a ne w trial for th ese legally invali d reas on s was a n abuse of the trial court ’ s disc r etion

. See Arizmendi , 519 S.W.3d at
148 ; Herndon , 215 S .W.3d at 907 ; see State v. Balderas , 915 S.W.2d 913, 919 (Tex. App.

— Houston [1st Dist.] 1996, pet. ref’d) ( reversing or der granting new trial where “ no thing14 introduce d at th e hearing for new trial wa s sufficient to support [defendant ] ’ s allegations that a new trial should be granted ” ).
2. No showing that Guilbault’s substantial rights were affected Guilbault also com plain s that Officer Lopez provid ed “ fa lse and/ or misle ading testimony ” that “the State failed to correct , ” which was “the fl aw in this trial.” H o wever, even if the trial court was persuaded by that argument , as it appears to have been, Guilbault failed to show that his substantial right s were affected by the complained

- of testimony f rom Officer Lopez

. “ Trial courts should not grant a ne w trial if the defendant ’ s substantial rights were not affected. ” Herndon , 215 S.W.3d at 90 8

. Any error, defect, irregu la rity, or variance that does no t affe ct substantial r igh ts

— meaning those that d id not seriously affect the verdict or render the trial fundam entally unfair

— must be disregarded. See Tex. R. App. P. 44.2(b); Jacobson v. State , 398 S.W.3d 195, 204 (Tex. Cri m. App. 2013) ; State v. Barragan , 421 S.W.3d 16, 23 (T e x. App.

— Waco 2013 , pet. r ef ’ d )

. Here, Guilbault has not shown that the jury ’ s verdict in this DWI case was seriously affect ed or that his trial was rendered fundamentally unfair by Officer Lopez ’ s
te stimony concerning t he 2007 s tud y on a d m i n i s t r a t i o n o f the HGN test ’ s lack

- of

- sm ooth

- pursuit component , the field

- sobriety

- test instruc tions in an NHTSA manual from 20 00 , and the appli cability of a statutory exemption for perceived dr iving infractions by O fficer Kory in a non

emergen cy s ituati on
. Aside from that testimony , the jury h ad evidence that Guilbault a dmitted to having “ a couple of beers ” bu t then changed his answer to one quart of be er , had a n odor of alcohol from his breath and body, and had blo odshot and glassy eyes

. Moreove r, ind ependent of the f ield

- sob riety tests and O fficer Lopez ’ s observations of Guilbault, the jury had evidence showing that Guilbau lt had a BAC of .087 , which met the statutory definition of “ intoxicat ed ” in15 the Penal Code. See Tex. Penal Code § 49.01(2) (B). Nothing show s t h at the jury would have
ret urned a different verdict given th i s evid ence
. See Bar ragan , 421 S.W.3d at 23 ( conc l uding that e ven if change in witness ’ s testimony “ r endered his trial testimony false or mis leading such that the State was requir ed to re

- open th e testimony, thu s satisfyi ng Herndon ’ s second step, [defendant] did not show that his substantial rights were affected ” and that trial court erred by granting new trial ); s ee also Sanchez v. State , No. 01

- 08

- 00423

- CR , 2009 Tex. App. L EXIS
1 420 , at * 16 (Tex

. App.

— Houston [1st Dist.] 2009, pet. ref’d) ( mem. op., not designated for
p ublic ation) ( concluding that although o fficer ’ s testimony erroneously indicated that only cause of involuntary eye movement du ring HGN test was “ introduction of alc ohol into the sy stem , ”

“ there [wa] s no rea sonable likelihood that the false testimony could have affected the judgment of the jury ” considering ot her evidence of defendant ’ s intoxication presented during trial ). Furth er , Officer Lopez ’ s testimony ab out th e applicability of a statutory exemption f or perceived driving infractions by Officer Kory was no t material to G uilb ault ’ s prosec ution for DWI , s ee , e.g. , Ex parte Castellano , 863 S.W.2d 476, 485 (Tex. Crim. App. 1993) (noting that perjured testimony must be “material” fo r it to violate defendant’ s d ue - process rights ) , a n d the jury heard Officer Lopez correct his te stimony after reviewing the a pplicable statu te

. With out evidence establis hing harm to his substantial rig hts under the standards in Rul e 44.2 , Guilbault could not meet his burden of sh owing his legal ent itlement to a new trial

. See Herndo n , 215 S.W.3d at 909; see also Trahan , 2 016 Tex. App. LEXIS 616, at * 19

- 20 ( concluding that trial court abused its discretion by granting new trial where defendant fail ed to

m eet his evidentiary burden and fail ed to “ establish harm ” )

. On this record, Guil bault failed to show th e requisite deg ree of harm. Acc o rdi ngly , we conclude that t he trial court abused its discretion by granting a new trial. See Ar i zmendi , 519 S.W.3d at 148 ( “ Granting a new tri al for a16 ‘ non - legal or le gally inval id reason i s an a buse of discret ion. ’ ” ( quot ing Herndon , 21 5 S.W.3d at 907) ) ; He rndo n , 215 S.W.3d a t 907 ( “ [T]he trial cou rt does not have discretion to grant a new trial un l ess the defendant show s that he is entitled to o ne under the law. ” )

. W e sustain t he
Sta te ’ s is sue
.
CON CLUSION We reverse th e order grantin g a new trial and rem and this cause to the tr ia l court with instructions to reinstate the judgment of conviction i n accordance with the j ury ’ s verdict an d the se nt ence imposed by the trial court

. See Arizmendi , 519 S. W.3d at 1 51.

_________ ______________ ___________________ Darlene Byrne , Chief Justice Befor e Chief Justice Byrne, J ustices Bake r and Triana
Revers ed and Re manded Filed: January 13, 2022 Publish