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

NO. 03
- 19
- 00226
- CR

Walter Dennis Dunlap, Appellant

v. The State of Texas, Appellee

FROM COUNTY COURT AT LAW NO. 1 OF COMAL COUNT Y NO. 2016 CR 1971, TH E HONORABLE RANDAL C . GRAY, JUDGE PRESID ING

M E M O R A N D U M O P I N I O N

Walter Dennis Dunlap w as charged with driving while intoxicated with a b lood

alcohol concentration of 0.15 or more. See Tex. Penal Code § 49.04. B efore trial, Dunlap filed a motion to suppress evidenc e ob taine d d urin g the police investigation after a traffic stop. The
t rial court denied th e motion. Dunlap elected to have the trial court assess his punishment if the j ury found him g uilty. During the trial, Deput ies Chris Gerhardt and Cameron Celli, who were invo lv ed in the investigation , and Nick Pierce, who was a forensic toxicologist , all testified , and recordings from camer as in side Deput ies Gerhardt ’ s and Celli ’ s patrol cars were admitted into evidence an d played for the jury

. T he jury found Dun lap guilty of the charged offense , and the trial co ur t sentenced Dunlap to 365 days ’ confinement in county jail

. See i d. § 12.21. Following his conviction, Dunlap filed a motion for new trial , which was over ruled by operation of law.
See Tex. R. App. P. 21. 8

. I n fo ur is sue s on appeal, Dunlap contends that the trial court erred by failing to grant his mo tion to suppress , by admitting the recordings mentioned above into2

evidence, and by failing to convene a hearing on his motion for new trial. We will affirm the tria l cou rt ’ s judgment o f conviction.

DISCUSSION Motion to Suppress
Detention In his fi rst issue on appeal , Dunlap contends that he was unreasonably de tained twice after being pulled over durin g a traffic stop and that , t herefore, the trial court sh ould h ave
sup pressed a ll e vidence related to events occurring after the start of the initial detention. During the suppression heari n g, Deputies Ge rhardt and Celli testified and recordings from camer a s in their patrol cars were admitted into evidence and p layed for th e trial co urt

. T he following

summar izes the testimony and other evidence from the suppression hearing

.

Deputy Ger h ardt was on patrol during the holiday weekend before July 4

. B ecause it was a holiday weeken d, “ two traffic units ” were dedicated t o a “ driv ing while i ntoxicated task force ” to investigate potenti al d riving

- while

- intoxic a ted offenses while allow ing other patrol officers to stay on the road a nd answer calls as needed. At the suppression hearing, Deputy Gerhardt explained that he had t raining i n performin g field

- sobriety tests and in inves t igating intoxication offenses but was not assigned to the dri ving

- while

- int oxica ted task force that weekend

. While on duty, De puty Gerhardt observed a driver later identified a s Dunl ap appearing
to s p eed. Af

ter using the rad ar gun inside his pa trol car, Deputy Gerhardt determine d that Dunlap was driving 76 miles pe r hour in a 60

- m iles

- per - hour zone and initiate d a traffic stop

. While talking with Dunl ap at his car, Deputy Gerhardt notic e d “ a strong odor of al coholic be ver age emitting fro m his breath ” and noticed that Dunlap was having difficulty prod u cing3

his proof of insurance and had b lood shot and glassy eyes . During t heir conversation, Dun l ap stated that he had been at the lake wakeboarding but d enied havi ng a nything to drink. At the suppression hearing, Deputy Gerhardt explained that he returned t o hi s patrol car to ask dispatch
to run a w a rrant check , to write Du n lap a warning , and to request assistance from De puty Celli, who ha d been assigne d to the dr i vi ng - while

- i ntoxicated task force

.

About tw elve minutes later , Deputy Gerhar dt returned to Dunlap ’ s car and asked Dunlap if he had consumed any alcohol tha t day

. Dunlap denied drinking any alcohol , and Deputy Gerhardt ask ed D unlap to step out of the car a nd then as ked Dunlap if he would consent to performing any field

- sobriety te sts. D unlap refused to perform any sobriety tests, and Deputy Gerhardt p laced Dunlap in handcuffs and directed Du nlap to sit in the back of the p atrol car. However, D eputy Gerhard t explain ed to Dunlap that he was not under arrest and was being detained for his safety and for suspicion of driving wh ile intoxicated. A t th e suppression hearing, Deputy Gerhardt testified that he detained Dunlap in the patrol car for his s afety because they

wer e beside a busy highway and because it was a very hot day. Shortly after he direct ed Dunlap to sit in the patrol car , Deputy Gerhardt lea r ned that Du nlap ’ s license was not valid because he had not paid a surchar ge for previously hav i ng driv en wit hout any liability insurance.

While Dunlap was in Deputy Gerhardt ’ s patrol car, Deputy Celli arri ved on the

s cene and took over the investigation. At the suppression hearing, Deputy Celli testified that h e ha d rece ived trai ning in field

- s obriety test ing a nd in inves tigating intoxication offenses. Shortly after Deputy Celli arrived, Deputy Gerhardt asked Dunlap to step out of the patro l car and removed the h andcuffs. Dunlap wa s in Deputy Gerhardt ’ s patrol c ar for approximat ely two to thr e e minutes.4 W hen i nte r acting with Dunlap , Dep uty Celli observed “ a strong od or of alcohol emitting from . . . Dunlap ” and noticed that Dunlap had “ red, bl o odshot and glassy eyes ” and

“ couldn ’ t walk in a straight fashion and kind of zigzagged

. ” At the su p pression hearing, D epu ty Celli described Dunlap as appearing “ heavy footed as he was walking ” and as having “ a front
to back sway. ” Deputy Celli asked Du n lap if he had anyt hing to drink that day, and Dunlap initi ally denied hav ing had anything to drink b u t later answered th e q uestion by stating that any amount he had to drink was “ insignifi cant. ” While talking with Dunlap, Deputy Celli asked Dunlap to submit to field

- sobriety test ing , but Dunlap refused

. Deputy Celli then informed Dunlap that he was bei n g arrest ed for dr iv ing while intoxicated and placed Dunlap in h andcuffs.

A f ter the he a ring, the trial court denied the motion to suppress and issued findings

o f fact and conclusions of law s upporting its ruling. Sp ecifically, the court found Deput ies Gerhardt and Cell i to b e credible witnesses and made the following findings and conc l usions :
Deputy Ge rhardt observed Dunlap dri ving 76 miles per hours in a 6 0 miles per hour zone . Deputy Gerhardt could sm ell alcohol from Dunlap

. Dunlap ’s eyes were bloods h ot, red, and glassy

. D u nlap stated that he was coming from the lake on the holiday w e ekend

. Deputy Gerh ardt had to ask Dun lap to pro vide his proof of insuranc e more than once . Deputy Gerhardt returned to his patrol car to run D unlap ’s information and subs e quently learned tha t D u nlap ’s license was invalid

. Deputy Gerhardt asked another un i t to per form an investigation regarding whether Du nlap was driving whil e intoxicated because extra units were on hand for this purpose over the holid ay weekend

. D eputy Ger h ard t was making arr ang e ments for another patrol un it to as sist him while he was in h is patrol car

.5

Deputy Gerha rdt returned to Dunlap ’s car and asked Dunlap if he would perform some field

- s obriety tests

. Dunlap refused to perform the requested testing

. De p uty Gerhardt placed Du n lap in handcuffs and told Dunlap that he was being d etained b ut not arrested

. Dunlap was detain ed for two minutes before Dep uty Celli arr ived

. Deput y Gerhardt had probable cause to initiate a traff ic stop after observing Dunlap comm i t a traffic violati on . Deputy Ge rhardt had reasonable s uspicion to detain Dunlap to investigate whether Dunlap committed the offense of driving while intoxic ated

. No evidence was ob tained in violation of any governing law. No evidence should be su ppressed in this case.

On a ppe al , Dunlap contends that the trial court erred by denying his motion to suppress because he was detained twice for an unrea so nable am ount of time after the traffic stop was initiated and that those two detentions did not further the i n vest igation. More sp ec ifically,
Dun lap argues that he was unreas onably delayed for twel ve minutes when Officer Gerhardt returned to his car after speaking w ith Dunlap the first time and that he was again unreas onably de tained for two minutes while sitti n g in the bac k of De p ut y G erhardt ’ s patrol car. Moreove r, Dunlap argues that the d e la y was unnecessary because Deputy Gerhardt cou ld have performed a driving

- while

- into xicated investigation him self . Fur ther, D un lap asserts that no investig ative work was b eing performed duri ng th ose detentions and that Deputy Gerhardt was simply waiting for another o fficer to arrive. Finally, Dunlap urges that all ev idence related to the portion of the traffic stop following the start of the first de tention s hould have be e n suppressed becaus e “ [t ]he

conven ience of the officers nev er justifies a detention. ”6 Appellate courts review a trial co urt’s ruling on a motion to suppress f or an abuse of discretion. Arguellez v. State , 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). Un d er that standard, t he reco rd is “viewed in the light most favorable to the trial court’ s d etermination, and the judgment w ill be reversed only if it is arbitrar y, unreasonable, or ‘outside the zone of reasonable disagreement.’ ” State v. Story , 445 S.W.3d 729, 732 (Tex. Crim . A pp. 2014) (quoting
State v. Dixon , 206 S.W.3d 587, 590 (Tex. Crim . A pp. 2006) ). In general, appella te courts apply “a bifurcated standard , giving almost total deference to the historical facts found by the trial court and analyzing d e novo the trial co urt ’s a pplication of the law.” See State v. Cuong Phu Le , 463 S.W.3 d 87 2, 876 (Tex. Crim. App. 2015); see also Arguellez , 409 S.W.3d at 662 (explaining that appellate courts afford “almost complete deference

. . . to [a trial court’s] d etermination of his tor ical facts, especially if those are based on an assessment of cre dibili ty and demeanor”). “The same deference is afforded the trial court with respect to its rulings on application of the law to questions of fact and to mixed questi o ns of law and fact, if reso lution of those questions depends on an evaluation of credib ility a nd demeanor.” Crain v. Stat e , 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Moreover, courts “consider only the evidence adduced at the suppression hearing because the ruling was base d o n tha t evidence rather than evidence introduced later” unless “th e suppres sion issue has been consen sually relitigated by the parties duri ng trial.”
Herrera v. State , 80 S.W.3d 283, 290

- 91 (Tex. App.

— Texarkana 2002, pet. ref ’ d) (op. on reh ’ g).
A trial co urt’s r uling on the motion will be upheld if it is c orrect unde r any theory of law appl icable to the case regardless of wheth er the trial court based its ruling on that theory, but “a trial court’s ruling will not be reversed based o n a legal theory tha t t he comp laining party did not present to it.” Story , 445 S.W.3d at 732.7 “Routine traffi c stops are analogous to investigative detentions.” Martinez v. State , 236 S.W.3d 361, 369 (Tex. App.

— Fort Worth 2007, pet. dism ’ d , untimely file d ); see also State

v . W oodard , 341 S.W.3d 404, 411 (Tex. Crim. App. 2011) (d escribing types of interactions bet ween citizens and law

- enforcement pers onnel). Investigative detentions are less intrusive than arrests, Derichsweiler v. State , 348 S.W.3d 906, 9 16 (Tex. Crim. App. 20 11), an d an officer
may initiate a traffic stop if he has reasonable sus picion that a cr ime is about to be committed or has be en committed, see Guerra v. State , 432 S.W.3d 905, 911 (Tex. Crim. App. 2014). For reasonable suspicion to exist, an actual vi ola tion do es not need to have occurred; rather, it is only necessar y that “the off icer reasonably believed a violation w as in progress.” Green v. State , 93 S.W.3d 541, 545 (Tex. App.

— Texarkana 2002, pet. ref ’ d); see Carmouche v. State , 10 S.W.3d 323, 328 (Te x. Crim . App. 2000) (noting that officer may briefly detain perso n for investig ative purposes on less than probable c ause where specific and articulable facts along with inferences from those facts reasonably warrant detention). “In assessing whether t he intrusi on was reasonable, an objective stand ard is utilized: would the facts av ailable to the officer at the
moment o f the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate.” D a vis v. State , 947 S .W. 2d 240, 243 (Tex. Crim. App. 1997); see also
Garcia v. State , 43 S. W.3d 527, 53 0 (Tex. Crim. App. 2001) (explaining t hat “[t]his standard is an objective one: there need only be an objective basis for the stop; the subjective intent o f the officer condu cti ng the stop is irrelevant”). Moreover, the a ssessment is made in li ght of the t otality of the circumstances. Woods v . State , 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). Provided that the traffic stop is based on reasonable suspicion, then the detention “doe s not violate Texas law.”
Guerra , 432 S.W.3 d at 911.8 In addressing w hether a s top was supported by reasonable suspic ion, reviewing courts must consider whether the officer’s actions were justified at the inception and whether the

c i rcumstances justify ing the st op are reasonably related to the seizu re’s scope. Kothe v. Stat e , 152 S. W.3d 54, 63 (Tex. Crim. App. 2004). “ [T]he general rule is that an investigative stop can last no longer than necessary to effect the purpose of the sto p .” Id. “During a traf fic st op, an officer may demand identificati on, a valid driver ’ s license, and p roof of insurance from the driver, and may also check for outstanding warrants.” Simpson v. State , 29 S.W.3d 324, 327 (Tex. App.

— Houston [14th Dist.] 20 0 0, pet. ref ’ d )

. Fu rthe r, “an officer is entitled to request inform ation concerning .

. . the driver ’ s d estination[ ] and the purpose of the t rip.” McQuarters v. State , 58 S.W.3d 250, 255

- 56 (Tex. App.

— Fort Worth 2001, pet. ref ’ d).

“ I f during a valid tra f

fic stop and detent ion, the o fficer develops reasonable suspicion tha t the detainee is engaged in crimin al activity, prolong ed or continued de tention is justified.” Haas v. State , 172 S.W.3d 42, 52 (Tex. App.

— Waco 2005, pet. ref ’ d); see Powell v.
State , 5 S.W.3d 369, 377 (T ex. App.

— T exarkana 1999, pet. ref ’ d); see also Woo dard , 341 S.W.3d at 414 (explaining that information kno wn to officer gav e him probable cause to arrest defendant for driving while intoxicated or reasonable suspicion to detain and admi n ister field

- sobriet y
te sts). Additionally, “ a delay in an officer ’ s required investigation to confirm o r dispel the officer ’ s suspicions of t he suspec t and a resul tant pr olonged detention is reasonable unde r the Fourth Amendment when the delay furthers l e gitim ate law enfor c emen t purp oses. ” Belcher v.
State , 244 S.W.3d 531 , 539 (T ex. App.

— Fort Worth 2007, n o pet.) ; see also Koth e , 152 S.W.3d
at 63 (explaining that analysis unde r Fourth Amendment “ requires a balance between the public interest served and t h e individual ’ s righ t to be fr ee from arbitrary detentions and in trusion s ” )

.

“ Legitimate law enforcement purp oses include a delay to permit the arrival of a DWI enforcement9

officer so that the supervisory officer initiating the stop can return to duty

. ” B elcher , 244 S.W. 3d
at 541. “ W hen a traffic stop detention is prolonge d by a reasonable delay to comply with legitimate police policy, no Fourth Amendment violation has occurred

. ” Bullock v. State , 426 S.W.3d 226, 231 (Tex. App.

— Houston [1st Dist.] 2012 , no pet.)

. When de term ining w h ether

a legitimate law

- enforcement purpose j ustified the detention, “ the key inq uiry is no t whether

a less in trusive alter native was avai lable to law enforcement officers, but whether the police acted unreasonably in failing to choose that al te rnat ive. ” H artman v. State , 144 S.W.3d 56 8, 5 74 (Tex. App.

— Austin 2004, no pet.)

. 1

1 In his brief, Dunlap cont e nds that the only law

- enforcement interests that can justify a detention a re preventing an individual fro m fleeing in the event that s omething incriminati ng is found, minimizing the risk o f harm to individua ls and to police of ficers, and aiding the orderl y completion of a search. Howe ver, we do not read any of the c ases relied on by Dunlap for that proposition as excluding from legitimate law

- enforcement interests brief detentions to allo w for the arrival of a driving

- while

- intoxicated

- task

- force officer w hen police officers have reasonable suspicion to believe that an indiv idual comm itted th e offense of drivi ng while intoxicated

. See R odriguez v. United States , 57 5 U.S. 348 , 350 , 358 (20 1 5) ( expl aining that dete ntion after completi on of traffic stop to c o nduct drug sniff of car was unreasonable seizure but reman ding case to determine whether detention was justifie d by reasonable suspic ion ) ; Bailey v. United States , 568 U.S. 186 , 190, 199 , 202 (2013) ( decidin g that det ention o f individual who had left home before home was searched under authority of search warrant and had traveled one mile away was unreasonable because detention “ incident to the e xec ution of a search warrant [is ] limited to the immediate vicin ity of the premises to be searched ” unless searc h was “ justified by some other rationale ” ) ; United S t ates v. Sh arpe , 470 U. S. 675 , 683 , 687 , 688 (1985) (finding no

“ delay unnecessary to the legit imate investigation ” where in dividual was delayed for twenty minutes by one law

- enfo rcement officer while wai t ing for arrival of drug

- enforcement agent who had previously initiated in vestigation ); F lorida v. Royer , 460 U. S. 491 , 505, 507

- 0 8 (1983) ( d etermining that removing indi vidual to i n terrog a tion room at airpor t did not serve legi timate law

- enforcement purpo s e justif ying initial detention and that defendant was il legally detain e d in room when he cons ented to se arch of his luggage ); Michigan v. S umme rs , 452 U. S. 69 2 , 693, 705

- 06 (1981) ( uphold i ng a rrest of indivi dual who w as detained by police officers w hile t h ey searched his home under authority of search warrant); see al so Uni ted States v. Campbell , 912 F.3d 1340, 1353, 1355, 1356 (11th Cir. 2019) ( determining that officer ’ s twe nty

- five secon d extension of deten tion for p urpose of in vestigating cri mes beyond t raffic offense by asking questions about contraband in vehicle was unlawful in ab sence of reasonable suspicion).10 As fou nd by the tr ial court, Deputy Gerhardt observed Dunlap commit a traffic offense by driving 76 mi les per hour in a 60

- miles

- per - hour zone

. See T e x. Transp. Code §§ 545. 351

- . 3 52. Accordingly, Deputy Gerhar dt had re asonable suspicion to initiate a traff ic stop. See Icke v. State , 36 S.W.3d 913, 916 ( Tex. App.

— Houston [1st Dist.] 2001, pet. ref ’ d) (determining that officer had reasonable suspicion t o initiate traffic stop where of f i cer observed defendant sp eeding and confirmed that observation by usi ng r adar gun to estimate defend ant ’ s speed). In addition, the trial court found that Deputy Gerhardt detected a str ong odor of alcohol when he interact e d with Dunlap at hi s ca r and no t i ced that Dunlap was having diffic ulty producing his proof of insurance and that his eyes were red and bloodshot. Further, as found by the trial court, the traffic stop occurred on a ho liday weekend, and Dunlap admitted th a t he had driven fro m th e lake

. T he trial court ’ s findings are supported by the record. I n light of those findings , including the f

inding addressing Deputy Ge rhardt ’ s observation of Dunlap ’ s speeding ,
we conclude that Deputy Gerhardt had reasonable su spi c ion to detain Dunla p to inves tig a te whether he committed the offense of driving while intoxicate d. S ee Tex. Penal C ode § 49.04 ;

se e also Kirsch v. State , 306 S.W.3d 738 , 745 (Tex. Crim. App. 2010) (explaining that erratic driving and post

- driving behavio r such as inabil ity to f ollow dir e ctions and having bloodshot eyes can logically r aise inferen ce that individual is intoxicated a t time of driving) ; Sha k e speare v. S tate , No. 03

- 00

- 00707

- CR, 20 01 WL 421003, at * 3 (T ex. App.

— Austin Apr. 26, 2001, no pet.) ( o p., not designat ed f or public ati o n) (determin ing that officer h ad reasonable su spicion to detain defen dant to investi gate whether he com mitted offense of driving while intoxi cated, in part, because officer observed defendant commit traffic offense and det e cted o dor of al coho l on d efen d an t ’ s breath)

.11 R egardin g the le ngth of the detention , which Dunlap characterizes as two de tentions, the trial court found that during the initial detention, Deputy Gerhardt returned to his patrol car to determine whether D u n lap had any warrant s out for his a r rest a nd to r un his license and requested the ass istance of an officer from a driving

- while

- intoxicated task force because officers had been assigned to the task force for the holiday weekend

. T hose findings are support e d by tes timony and other evid ence f rom th e hearing , and the recording from Deputy Gerhardt ’ s dashboard camera showed that Dep uty Gerhardt did not learn that Dunlap ’ s license was invalid until after the second detention began

. Cf. Richardson v. State , 494 S.W.3d 302, 304 (Te x. App.

— Wa co 20 1 5, no pet.) (noting that “[i]t is only after this computer check is completed, and the officer knows that this driver has a currently valid license, no outstanding warrants, and the car is not stolen, that the traffic

- st o p investigation is fully reso lv ed” )

. In addition, when Deputy Gerhar dt returned to Dunlap ’ s car the second time, he continued the investig ation by asking Dunlap q uestions about whe ther he had been drinking and if he would agre e to perform field

- sobriety t ests, which he refu sed to per form

. Follo wing that refusal, Dun lap was further detained for approximately two to three minutes before Deputy Celli arrived to take over the investigation.

When confronted with delays similar to the fifteen

- to

- sixteen minu t e one at issue here and even longer o nes , o ur sister courts of ap peals have de termined that the lengths of those detentions were reasonable when undertaken for the law

- enforcement purpose of allowing a driving

- while

- intoxica ted

- task

- for ce officer to take o ver an inves tigatio n and allo w the o f ficer init iat ing the traffic stop to return t o h is duties

. See Cagle v. State , 509 S.W.3d 61 7, 625 (T ex. App.

— Texar kana 2016, no pet.) (de ciding that delay of twenty

- one minutes to allow another officer to conduct dri v ing

- while

- intoxicat ed investi ga tion “ served legitimate law enforcemen t12

purposes ” and “ was not unreasonable ” ); Bullock , 426 S.W.3d at 23 2 ( finding fifteen minute delay “ was reasonable in light of the public polic ies served by the role of the D WI task fo rce ” ); Belc her , 244 S.W .3d at 5 41 , 542 ( d etermi ning that delay of twent y - seven minutes until task

force officer could arrive was not unre asonable ) . In light of that authority and given our standard of re view, we must conclude that the del ays at issue in t his case were not unrea sonable , p ar ticul a rly when Deputy Gerhardt contin ued to perform ta sk s throughout the detention related to the initiation of the traffic stop and the investigation o f whether Dunlap committed the offense of driving while intoxicated.

F o r these reasons, we overrule Dunlap ’ s f i rst issue on appeal.

De puty Ge rhardt Turning Off His Microphone

In his second issue on appeal, Dunlap contends tha t the trial court should have suppressed evi dence rega rding the traffic stop and subsequent d et e ntion because the r ec ording f rom Dep uty G e rhardt ’ s pat rol car shows that Deputy G erhardt committed a criminal offense after initiati ng the traffic stop. In particular, Dunlap notes that whe n Deputy Gerhardt returned to his car after first talking with D u n lap, Dep uty Gerhard t turned o ff his micro p hone. Further, Dunlap points to testim ony from Deputy Gerhardt at the suppression hearing in which he admit te d that he turned off his mic rophone even though he knew that an investigation was being conducted. Mor e over, Dunl ap urges that Deput y Gerha rdt ’ s conduct violated section 3 7.09 of the P enal Code, which speci f ies that a person commits an offense “ if, knowing that an investigation or official proceeding is pending or in progress, he

. . . alters, destroys, or conce als any record , document , or th ing w i th intent to impair its verity, legi bility, or availability as evidence in the investigation or official proceeding

. ” Tex. Penal Code § 37.09(a) (1). Building13

on these argument s, Dunlap contends that the trial co u rt sh ould have excl uded the p ortions of t h e recordings do cument ing and testimony des cribing the event s occurring after Deputy Gerhar dt ’ s mi c rophone was turned off because the evidence was obtained in violation of a Texas statute and, t here fore, could not b e admitted under th e Texas e x clusionary r u le. 2 See Tex. Cod e Crim

. Pr oc. art. 38.23.

To be guilty of a n offense under section 37.09, ther e must be “ proof o f a specific intent to impair the verity, legibility or availability of the item as evidence. ” R a bb v. State , 387 S. W. 3d 67, 7 1 (T ex. App.

— Amarillo 20 12 ), af f ’ d in part

, remanded in part , 434 S.W.3d 613 (Tex. Crim. App. 2014); see Stewart v. State , 240 S.W.3d 872, 874 (Tex. Crim. App. 2007) ( explaining that statute “requires intent as to a particular result, namely, imp ai ring a t hing ’ s avail a bility as e vidence”). Although Deputy Gerhardt admi tted at the supp ression heari ng that he turned off his microphone even though he knew an i nvestigation was underway, no evidence
was pr esented during the hearing indicating that Dep ut y Gerhar dt turned of f the microp hone with

2 As support for his arguments, Dunlap refers to an opinion by the Cou r t of Criminal Appea ls. See W

ilson v. State , 311 S.W.3d 452 (Tex. Crim. App. 2010). Howe ver, we believe tha t Wilson is di stingui sh able fr o m th is case. In Wilson , the defendant called the police to report that he found a d ead man while walking home. I d. at 454. After rece iving info rmation that linked the defendant to the m u rder, one of the investiga ting officers “ fabricated a foren sic lab report ” to state that the defendant ’ s “ fingerprints were found on the magazine c lip re trieved from the cr ime scene ” e ven though no “ prin ts were fo und on the clip. ” Id. Fur ther , the polic e officer admitted that he fabricated the report in order to get the defendant “ to re spond to hi s questioning, ” and the defendant subsequently confessed t o shootin g the man. Id. at 45 4 , 455. On appeal, the Court of Criminal Appeals determined that the po l ice officer violated section 37.09 because he acted with th e in tent to affect the course of an investigation and explained that “ a violation of section 37.09, a state law directly rel a ted to the acquisit ion and us e of evidence in criminal investigations a n d proceedings, bars the admission of other evidence obtaine d through that v iolation, even when the defendant ’ s confession is ‘ voluntary ’ under federal constitutional standards

. ” Id. a t 464

. In contrast , Dunlap d id not confess to any criminal misconduct a s a result of Deputy Gerhar dt ’ s decision to turn off his mi crophone , and De puty Gerha rdt did not testify that he turned off the microphone intentionally in an effort to impair the re c o rding ’ s
“ ver ity, le gibility, or availab ility as evidence ” or otherwise a ffect the investigation. See Tex. P enal Code § 37.09 (a)(1)

.14

the intent to impair the verity , legibility, or availability of the recording as an item of evid ence. See State v. R obinson , 334 S.W.3d 776, 779 (Tex. Crim. App. 2011) (explaining that “ a def e ndant who moves for s uppressi on under Arti c le 38.23 d ue to the violation of a statute has the burden of producing evidence of a statutory violation ” ). On the contrary, Deputy Gerhardt ’ s testimony and the recording itself demonstrate t hat Deputy Gerhardt d id not turn off his

m ic rophon e until after he stop ped interacting wi th Dunlap the fi rst time a nd then turned his microp hone back on before talking with Dunlap during the ir second interaction. Further, the trial court found , based on the testi mony and oth e r evidence presente d at trial , that De puty G erhardt d id not interact with Dun lap w hile the mic rophone was turned off and further found that during th e time in which the micro p hone was off, Deputy Gerhardt was running Dunl ap ’ s information and requ esting th e assist ance of a ta sk

- force o fficer. Cf. G onzales v. State , 6 7 S.W.3d 910, 912 (T ex. Crim . Ap p. 2002) ( observing that evidence is not obtained in viol at ion “ of a provision of law if t here is no causal con nection between the illegal conduct and the acquis i tion of evidence ” ). T hose fi ndings are su p ported by the testimony and other evid ence presented during the suppression hearing.

In light of the preceding and given our standard of review, we cannot con clude that the trial court erred when it denied Dunl a p ’ s motion to suppr ess after determin ing t h at , lacking the requisite mens rea for violating section 37.09, Deputy Gerhardt did not obtain eviden ce in violation of any governing law . Acco rdingly, we overrule Dunlap ’ s second issue on appeal. 3

3 In this issue, although Dunlap co ntends that the tr ial court should have suppressed the evidence in question, Dun lap a l so refers to portio ns of th e record in which he sought t o question Deputy Gerhardt during th e trial about his decision to turn off h is m i c rophone before the S t ate su ccessfully objected to the questioning on relevancy grounds and in which the trial court d e nied his request fo r a jury i nstruction regarding whethe r the jury should disr egard the evidence in the recordings under the exclusi ona ry rule found in article 38.23 of the Code of Criminal Procedure.15

Admission o f Ev idence

In his third iss ue on appeal, Du n la p argues that the tri al court erred when it admitted into evidenc e recordings from Deputy Gerhardt ’ s dashbo ard camera, from Deputy Celli ’ s dashboard camer a, and from a cam era inside Deputy Celli ’ s patrol car because those recor dings depi cted him in hand c uffs

. When challenging the trial court ’ s ruling, Dunlap contends t hat

a dmitting the recordings wit hout redacting the portions showing him in handcuffs infringed on his constitutional right to a presumption of innocence.

T o the ext ent that Dunlap is challenging those ruling s in addition to cha llen ging t he trial court ’ s suppression rul ing, those ar g umen ts are m ultifarious. See Davidson v. State , 249 S. W. 3d 709, 717 n.2 (Tex. App.

— Austin 20 08, pet. ref ’ d) (explaining that issue containing “ more than one specific ground of err o r is a multifarious one ” and that ap pellate courts “ may re fuse to cons ider it ” ). In any event, the trial court considered the is sue of whether Deputy Gerhardt committed an offense based on the evidence presented du ring the suppression hear ing and denied t he motion to suppre ss. In l i ght of the evidence from the hearing , we wou l d be unable to conclude that the trial court abused its d i scretion by determining at trial th at the evidence was not relevant. S ee Tex. R. Evid. 401 (e xplaining that evidence is re l evant if “ it has an y tendency to make a fact more or less probable than i t would be without the evidence ” and if “ the fact is of co nsequence in determining the action ” ) . Moreove r , Dunlap does not point to a porti on of the record in which he made a n o ffer of proof setting ou t ev idence regarding Dep uty Gerhardt ’ s alleged violat io n beyond that introduced during the suppression hearing. S ee id. R. 103 (explaining that if party object s to exclusion of eviden ce, party must inform tri al court of substance of ev i dence “ by an offer of proof ” to pr e serve claim for review “ unle ss the subs t ance was apparent from the context ” ); Allen v. State , 4 73 S.W.3d 426 , 4 42

- 43 (Tex. App.

— Houston [14th Dist.] 2015 ) ( stating that party challenging ruling excluding evidence must pr e sent offer of proof ) , pet. di sm ’ d, improviden tly granted , 51 7 S.W.3 d 111 ( T ex. Cr im. App. 2017)

. D uring the trial , no evidence wa s presented indi cating that by turning off his microphone, Deputy Gerhardt intended to impair the recording ’ s “ verity, legibil i ty, or availab ility as eviden ce ” as required by the Penal Code. See Tex. Penal Code § 37.09(a) (1) . A ccording ly, we would be unab l e to conclude that the trial court erred by refusin g Dunlap ’ s request for a 38.23 instruction , see Totten v. State , 570 S.W. 3 d 387, 389

- 90, 392 (Tex . App.

— Houston [1st Dist.] 2019 , no pet.) (determin ing that trial court did not err by failing to pro vide a r ticle 38.23 instruction where there was no fa ct issue and explaining that to be entitled to instruction under article 38 .23 “ (1) the evidence he ard by the jury must raise an issue of fact; (2) the ev idence on that fact must be affirmatively contested; and (3) the contested factual issue must be material to the lawfulness of the challenged conduct ” (quoting Oursbourn v. State , 2 5 9 S.W.3d 159, 177 ( Tex. Crim. App. 20 08) )).16 F or th e purp ose of resolving this i ssue on appeal, we will ass ume without deciding that the admission of the re cordings was error. See Lucas v. State , 791 S.W.2d 35, 5 5, 56 (Tex. Crim. App. 1989 ) (explaining that admission of evidence depict i ng defendant in han dcuffs was error because it i mpacted “ the constitutional presumption of innocence ” ); Simon v. State , No. 01

- 04

- 01212

- CR, 2006 WL 1550020, at * 3 (Tex. App.

— Houston [1st Dist. ] June 8, 2006 , p et. ref ’ d) (mem. op., not designated for publi c ation) (stating tha t appel lat e courts must find error from admission of videotape show ing defendant in handcuffs unless reco rd reflects

“ good and sufficient ” reason for admitting evidence ( quoting Lucas , 791 S .W.2d at 55))

. A n err or stemming from a jury o bserving a defendan t in h andc uffs is constitu tio n a l error that is reviewed under Rule 44.2(a) of the Rules of Appellate Pro cedure. See Davis v. State , 195 S.W.3d 311, 316

- 17 (Tex. App.

— Houston [14th Dist.] 2 006, no pet.) ; Co le man v. State , No. 09

- 98

- 00 0 3 6

- CR , 1998 WL 637524 , at * 3 (T ex. App.

— Beaumont S e pt. 16 , 1998, no pet.) ( op., not designated for publication)

. But see Sim on , 2006 WL 1550020, at * 4 (reviewing error from admission of video sho wing defendant in handcuffs under Rule 44.2( b )). Under Rule
4 4.2 (a), a n appellat e cour t “ m ust reverse a judgm e nt of conviction or punishment unless the court determines beyond a reason able doubt that the error did not contribute to the conviction or punishment. ” Tex. R. App. P. 44.2(a). “ Constitutional error does not contribute to t he con vict ion or punishment i f the jury ’ s verdict wou ld have been the same if the erroneous evidence had not been admitted. ” Lovings v. State , Nos. 03

- 14

- 00 0 88 , - 0040 8

- CR , 2016 WL 1084690 , at * 7 (Tex. App.

— Austin Mar . 17, 2016, pet. re f ’ d) (mem. op ., not desig nate d for publication). Factors that appellate courts may consider when assessing harm in clude the nature of the error, whether the State emphasiz ed the error, the implications of th e error, and the weight that the jury would17

like l y have assigned to the e rror while deliberating. See Snowden v. State , 353 S.W.3d 815, 822 (Tex. Crim. App. 2011)

.

T he recording from Deputy Gerhardt ’s dashboard camera shows Dunlap in handcuffs for appro ximately thirty seconds before he was arrested and while he was be ing d irect ed into Deputy Gerhardt ’ s patrol car. Cf. Simon , 2006 WL 155002 0, at *4 (determining that def endant was not harm ed by admission of video sh owing hi m in handcuffs, in part, beca use video “was extremely short ”); Dennis v. State , 925 S.W.2d 32 , 41 (T ex. App.

— Ty ler 1995, pet. ref ’d ) (noting that video was “very short ”). T he recording from Deputy Cell i ’s dashboard

camera briefly shows Dunlap in handcuffs when he steps out of Deputy Gerhardt ’s patrol car before the h andcuffs are im m ediately removed an d later sh ows Dunlap in handcu ffs for approximat ely seven minutes after Deputy Celli places Dunlap under arrest for driving while intoxicat ed

. Although the time that Dunlap is de p icted in handcuffs after being ar rested is arguably not s h ort, the jury coul d have rea sonably ex pected that D u n lap would be placed in handcuffs after Deputy Celli placed Dunlap und er arrest. See Simon , 2006 WL 1550020, at *4 (explaining that “ the effect of the error is slight because the jury could have reason a bly expected

a sus p ect arrest ed for aggravated robbe r y to be handcuffed and taken into pol ice custody at the

scene ”); see a lso State v. Pringle , No. 12

- 12

- 00286

- CR, 2013 WL 3243525, at * 3 (T ex. App.

— Tyler June 25, 2013, pet. dism ’d) (mem. op., not designa t ed for publication ) (observin g that “ most jurors are aware that the person who is on trial has been arrested for the charge d offense ” and

“ that the fact of an arrest [is] not overly prejudicial ” )

. T he recording from inside Deputy Celli ’s patrol car showe d Dunlap inside the patrol car shortly after his a r re s t and while he was being
t ransported to a hospital for a blo od draw, a nd the video is appr oximatel y twenty

- two minutes long . However, although the recording shows Dunlap with his hands behind his back, the18

recording does not actual ly show Dunlap in handc u ffs. Cf. Avila v. State , 15 S.W.3d 568, 574 , 575 (T ex. App.

— Houston [ 14th Dist.] 2000, no pet.) ( determining that there was no error from admission of post

- arrest photographs of defenda nt because handc u ffs were not visibl e in pic tu res and beca use picture s only showed defendant wit h his hand s behind his back). Moreover, bot h Deputy Gerhardt and Deputy Celli testified without objection that Dunlap h ad been placed in handcuffs

. Cf. Dennis , 925 S.W. 2 d at 4 1 (de termining that admission of video showing defen d ant in hand cuffs was harmle ss where testimony was presented at trial s tating that defendant had bee n placed in handcuffs when he was arrested).

In addition, although the S t ate referenced conduct displ a yed by Dunlap in th e recordin gs during its opening and closing arguments, most o f those references were to the video from i nside Deputy Celli ’ s patrol c ar in which no h andcuffs were visible , to the portion of the video from Deputy Gerhardt ’ s dashboard cam e ra capturing the tr affic stop and the interaction betw e en Deputy Gerhardt and Du nlap befo re Dunlap gets out of the car, and to the portions of the recor ding from Deputy Celli ’ s dashb oard camera documenting Dunlap walking when he was not in handcuffs and i n teracting with Depu ty Celli b efore he wa s arrested , an d the State did not mentio n that either officer placed Dunlap in hand cuffs. The S tate did refer t o one portion of the recording from Deputy C elli ’ s dashboar d c amera in which Dunlap had been placed in h andcuffs but only m entioned t he comments that Dun lap m a de at that time . Simila rly, the S tate d id mention handcuffs once du ring i ts cl osing argument , but the State did so when describing how Dunlap walked in one of the recordings as if he were handcuffed e ven though he was n ot

.

More over, the jury is unlikely t o have given much weight to the portio ns of the recordings showing Dunlap in handcuffs considering the overw he l ming evidence pres ented at trial establishing his guilt. See Motilla v. State , 78 S.W. 3 d 352, 357 (Tex. Cr im. App. 2 002)19

(e xplaining that prese n ce of overwhelming evidence of guil t c an support determination tha t error is harmless under Rule 44.2(a)). D u ring the trial , Pier ce testified that he tested a blood sample that w as collected from D u nlap, that the bloo d

- alcohol concentration for the s ampl e was between 0.205 and 0.227, and that the results showed that Dunlap had a blood

- a lcohol le vel that was more than double the legal limit.

In a ddition , Deputy Gerhardt testified that he initiated a traffic stop af ter using his radar gun to determine that D unlap was dri v ing sixteen miles over the speed limit on the week end before the “ Fourth of Ju ly ” and that Dunlap s tated that h e had be en at the lake wakeboarding before deciding to drive

. Regardin g their interaction s with Dunl ap, both Deputy Gerhardt and
D eputy Celli stated that they could smell a “ strong od or ” of alcohol emitting from Du nlap ’ s breath and noticed that Dunlap ’ s eyes appeared bloodshot and glassy , and Deputy Gerhard testified that Du n lap had difficulty locating h is proof of insurance. Furth e r, Deputy Celli related that Dunlap “could not walk in a straight fashion , ” was zigzagging when he walk ed , “ was heavy footed , ” was mispronou ncing some of his words , and stated that he had an “ i nsi g nificant ”
amount of alcohol a fter initially den yi ng drinki n g anyt hing containing alcohol

. See Kirsch , 306 S. W.3d at 745 (explaining that evidence tha t would logically raise inference that individual is intoxicated includes, among other things, “erratic d r iving, post

- driving behavior such as stumbling, swaying, s l urring or mumbling words, inability to

. . . follow directions, bloodshot
eyes, [a nd] any a dmissions by the defendant concerning what, when, and how much he had been drinking ” ); Cotton v. State , 6 8 6 S.W.2d 140, 142 n .3 (Tex. C rim. App. 1985) (stating that “odor of alcohol on the person” is evidence of intoxication)

.

Furthe r, Deputy Celli recalled that two officers had to help Dunlap wal k into the hospital to get a blood sample and that Dun lap becam e “ bel ligerent ” and “ aggressiv e ” a t20

the hospital

. See Irio n v. State , 703 S.W.2d 362, 364 , 365 (T ex. App.

— Austin 1986, no pe t.) (affirming conviction for dr i ving while intoxicated , in part, ba sed on te stimony that defendant

was “ unusually bel ligerent ” whi l e being booked into jail). W hen describing Dun lap, Deputy Celli stated that he believ ed that Dunlap was intoxi cated based on his observations of Dunlap

. Kiffe v. State , 361 S.W.3d 104, 108 ( Tex. App.

— Houston [1st Dist.] 2011, pet. ref ’ d) (providing that , in general, office r ’ s testim ony that individual is intoxi c ated provides sufficient evidence to establish eleme nt of intoxication )

. Moreove r, Deputy Gerhardt expl ained that the officers found a Yeti cup i n the center console of Dunlap ’ s car containing a l iquid that smelle d like alcoh ol and found a can of be er in a cooler in the front passenger seat. S e e Priego v. State , 457 S.W.3d 565, 570, 571 ( Tex. App.

— Texarkana 2015, pet. r ef ’d) (upholdin g conviction in part because evidence showed that there was par t ial ly consumed bott le of alco hol inside car and that defen d ant smelled like alcohol)

. After the jury convict ed Dunlap, no ad ditional argument or evidence was presented before the t rial court sentenced him

.

For these reasons , we conclude beyond a reaso n a ble doubt that the admission of the portions of the recordin g s in dispute did not c ontribute to Dun lap ’ s conviction or punish ment. Therefore , we overrule Dunlap ’ s third issue. 4

4 In this issue, Dunlap conten ds that the trial court erred when it denied his objec tion to the admission of the recordings at trial, but he also referen ces portions of the suppression hearing in which he argu e d that the re cordin gs sh ould be suppressed. To the ex tent that Dunlap is ch allenging the denial of his motion to suppress this ev idence, we would also be unable to con clude that Dunlap was harmed by th e tr ial cou rt ’ s decision not to suppress the recordin g s for the same reas ons set ou t above

. See Tijerina v. State , 334 S. W.3d 825 , 835 (T ex. App.

— Amarillo 2011, pet. ref ’ d) (reviewing erroneou s denial of motion to suppress evidence on constitutional grounds under Rule of Appellate P rocedure 44 .2(a) and cons i dering entire recor d)

.21

Hearing on Motion fo r New Trial

In his fourth issue on appeal, Dunlap asse r ts that the trial c ourt er red by failing to convene a hearin g on his motion for new trial . In his m otion for new trial, Dunl ap argu ed , among other things, that the forensic to xicologist , Pierce, provided inco r rect testimony regarding the effectiveness of preserva tives in pr eventing a blood sample from ferm enting a n d, therefore, that he was entitled to a new trial. I n particula r, Dunlap r e fer red to portion s of Pierce ’s testimo ny in which he stated that a scientif ic study demonstrated that sodium fluorid e p revents the growth of y east t hat could otherw ise produce alc o hol in a blood sample , but Dunlap asserted that this testimony w as inaccurate. As support, Dunlap attached to his motion an affi davit from a chemist who averred that Pierce misinterpre ted the s t udy whe n he testifi ed that so dium flu oride prohibits al c ohol production in blood samples regard less of whether the sample was refrigerated and regardless of whether a particular type of yea st w as present in the sample , and the chemist also referred to var i ous scientific arti cles indic ating that certain y east can pr o duce alcohol in biological samples and chal lenging the efficacy of sodium fluoride as a preservative

. O n appeal, Dunl ap contends that his motion for new trial established t hat Pierce provided f a lse testimony that violated h is due

- process rights and that t h e trial court erred by failing to convene a hearing on the matt er. Appellate courts review a t rial court ’s decision to deny a hearing on a motion for new trial for an abuse o f discretion. S mith v. S t ate , 286 S.W.3d 333 , 339 (T ex. Crim. App. 2009). Ac c o r dingly, app ellate courts reverse “only when the trial judge ’ s decision was s o clearly wrong as to lie outside the zone w ithin which reasonable persons might disagree. ” Id. (quoting
State v. Gonzalez , 855 S.W.2 d 692, 695 n.4 ( Tex. Crim. App. 1993)). Mo r eover , the rig ht to a hearing on a motion for new trial is not absolute. See Torres v. State , 4 S. W.3d 295, 296 (Tex.22

App.

— Hou ston [1st Dist.] 1999, no pet.). A trial court is not required t o conve ne a hearing on a motio n for new trial if the movant doe s not request a hearing. See Gallegos v. S tate , 76 S.W.3d 224, 228 (Tex. App.

— Dallas 2002, pet. re f ’ d).

In general, to preserve a complaint for appe llate review, the record must show that

“ the complai nt was m ade to the trial court by a time ly request, o b je ction, or motion ” and that

“ the trial court . . . ruled on the request, objection, or motion, either expressly or implicit ly . . . or . . . refused to rule on the request, o b j ection, or mo t ion, and the compla ining part y objected to the refusal. ” Tex. R

. App. P. 33. 1 (a)

. Although the record contains Dunlap ’ s motion for new trial and a notice of presentation regarding Dunlap ’ s motion for new trial, the trial co urt did not sign an order ruli n g on the motion for new t ria l , and the motion was overruled by o p eration of law

. See id. R. 21. 8

. Moreo ver, Dunlap did not requ est a hearing in his motion for new trial or in his notice of presentation , and the record does not otherwise indicate that Du n lap mad e any attemp t to reque st a hearing regarding his motion f o r new trial or that the trial court rule d on any request for a h earing. See Gallegos , 76 S.W.3d at 228 (observing that “ the trial court could not have abused its discretion in failing to h o l d ” hearing on motio n f or n ew tr ial when “ nothing in the record .

. . suggest[ed] that appella n t wanted or req uested a hearing on his motion ” )

.

Accordingly , we must conclude that Dunlap failed to preserve this issue for appellate cons ideration. See Cast r o v. S tate , No. 03

- 12

- 0073 0

- C R, 2015 WL 1214402, at *5 ( T ex. App.

— A u stin Mar. 13, 2015, pet. ref ’ d) (mem. op., n ot designated for publication) (deciding that defendant failed to preserve is sue regarding trial court ’ s failure to hold hearing on motion for

n ew trial because “ m otion for new trial was overruled by op eration o f law, ” because defendant did not “ object . . . to the fai lure to conduct a hearing, ” and because defendant did not timely present his motion for new trial ); Roque v. State , No. 01

- 02

- 0093 3

- CR, 2003 WL 223109 16,23

at *1, *2 (Tex. App.

— Houston [1st Dist.] Oct

. 9, 2003, pet. ref ’ d ) (mem. op., not designa ted for publicati on) ( determining that defendant failed to preserve issue asserting that trial court erred by failing to convene h earing on mot i o n for new trial wh ere motion for new trial was overruled by operat i on of law and where defendant mad e no “ attem pt to request a h earing on his motion for new trial ” ); O es trick v. State , 939 S.W.2d 232 , 234, 235 (T ex. App.

— Austin 1997, pet. ref ’ d) (conclud i ng that defenda nt f ailed to p reser ve for appellate review issue reg a rding hearing on motion for new trial even where reque st for hearing was included in motion for new trial because motion for ne w trial was overruled by operation of law meaning that “ the t rial court ’ s failur e to condu ct a h earing

. . . is simply a ‘ failur e to rule ’ on the request for a hearing ” and b ecause

“ there is no indication that appella nt ever attempted to schedule a heari ng or specifically brought to the trial court ’ s attention his d esire for one ” ) ; se e also Ber muda v. S tate , 471 S.W.3d 572, 574, 57 5 (T ex. App.

— Houston [1st Dist.] 2015, pet. ref ’ d) (ex plaining th at defendant preserved issue
regar ding trial court ’ s failure to conve ne hearing on motion for new trial whe n defendant made multip le request s f

or hearing in motio n for new trial , when defenda n t attached proposed orders to set h earing and to dispose of m otion based on argument from hearing , when motion was timel y presented, and when trial court signed order den ying motion for n e w trial )

.

For the se reasons , we overrule Dunlap ’ s final issue on a ppeal.

CONCLUSION Having overruled all of Dunlap ’ s issues on appeal, we affirm the trial court ’ s judgment o f conviction.24 _______ ___________________________________ Thomas J. Baker , Justice Befo re Chief Justice Rose, Justices Baker and T r iana Affirmed Filed: April 24, 2020
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