                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION

                                        No. 04-16-00614-CR

                                       Stetson Roy SEKULA,
                                              Appellant

                                                v.

                                        The STATE of Texas,
                                              Appellee

                     From the County Court at Law No. 6, Bexar County, Texas
                                     Trial Court No. 519407
                         Honorable Wayne A. Christian, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Karen Angelini, Justice
                 Patricia O. Alvarez, Justice

Delivered and Filed: March 21, 2018

AFFIRMED AS REFORMED

           This case stems from Appellant Stetson Sekula’s driving while intoxicated conviction

following a one-vehicle accident. The jury found Sekula guilty; and, the trial court assessed

punishment at 180 days in the Bexar County Jail, suspended and probated for a period of one-year.

On appeal, Sekula raises several issues related to the testimony of State witnesses San Antonio

Police Officer Walter Henning and forensic scientist Debra Stephens. Sekula also contends the

trial court erred in assessing attorney’s fees. We reform the judgment to delete the assessment of

the attorney’s fees against Sekula and affirm the judgment as reformed.
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                                   PROCEDURAL BACKGROUND

        Sekula was arrested for driving while intoxicated on June 4, 2016, and the trial court

appointed defense counsel on June 12, 2016. Less than a month later, on July 8, 2016, defense

counsel filed multiple, standard discovery motions, including several motions to suppress, a

request for the State’s witness list, and an all-encompassing “Defendant’s Motion Requesting

Relief of Various Sorts.” Two weeks later, on July 20, 2016, defense counsel filed a “Motion to

Suppress Videotape and Audiotape Evidence” and a “Motion to Take Judicial Notice of

Nystagmus Causes Other than Alcohol.” On August 8, 2016, the State filed its list of witnesses;

and, the following day, on August 9, 2016, the State filed an amended witness list.

        Sixty-six days after Sekula was arrested and charged, the matter was called for trial. On

the morning of August 9, 2016, the trial court heard pretrial motions; the jury was selected that

afternoon. After two days of testimony, Sekula was found guilty of driving while intoxicated. The

trial court sentenced Sekula to 180 days confinement in the Bexar County Jail, suspended and

probated for a term of one-year.

        On appeal, Sekula contends the trial court erred in denying his (1) motions to suppress, (2)

motions to exclude the expert testimony of Debra Stephens and Officer Walter Henning, and (3)

motions for continuance. Sekula also contends the trial court erred in ordering that he pay court-

appointed attorney’s fees without a hearing to determine whether there was a change in his

financial status.

        We turn first to Sekula’s arguments regarding the State’s failure to disclose its expert

witnesses as required under Texas Code of Criminal Procedure article 39.14(b). See TEX. CODE

CRIM. PROC. ANN. art. 39.14(b) (West Supp. 2017).




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                           EXPERT WITNESSES AND ARTICLE 39.14(b)

A.     Arguments of the Parties

       Sekula contends the State violated article 39.14(b) by not timely disclosing expert

witnesses. He argues that because the State failed to comply with article 39.14(b), the trial court

erred in overruling his sworn motion for continuance and allowing the experts to testify regarding

the horizontal gaze nystagmus test, nystagmus in general, the results of Sekula’s breath-alcohol

concentration level test, and the science of breath-alcohol concentration levels.

       The State counters that first, the record does not indicate, and Sekula does not argue, that

the State acted in bad faith. Second, the evidence shows Sekula was not surprised by either witness

and could have reasonably anticipated their testimony.

B.     Texas Code of Criminal Procedure article 39.14

       Texas Code of Criminal Procedure article 39.14, or the Michael Morton Act, provides that

the State must, upon the defendant’s request, allow the defendant access to reports, statements,

and other documents in the State’s possession that do not constitute work product. See id. Article

39.14(b) further provides that

               On a party’s request made not later than the 30th day before the date that
       jury selection in the trial is scheduled to begin or, in a trial without a jury, the
       presentation of evidence is scheduled to begin, the party receiving the request shall
       disclose to the requesting party the name and address of each person the disclosing
       party may use at trial to present evidence under Rules 702, 703, and 705, Texas
       Rules of Evidence.

Id. art. 39.14(b). All parties agree the State provided access to its file at the time of defense

counsel’s appointment, including all offense reports and videotapes of the night of Sekula’s arrest.

The State did not, however, provide defense counsel with a separate witness list including Officer

Henning’s and Stephens’s names, as required under article 39.14(b), until the day before the trial

began. See id.


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C.     Testimony before the Trial Court

       San Antonio Police Officer Walter Henning testified that shortly after midnight, on June

4, 2016, he was dispatched to the corner of Prue Road and Old Prue Road for a major, single-

vehicle accident. When Officer Henning arrived, the driver of the vehicle was not at the scene.

Sekula was located less than a quarter of a mile from the accident scene. Officer Henning

described Sekula as having “some small lacerations on him and had some, like, plants and stuff on

his clothing, remnants of plants.” The officer confirmed that Sekula was not injured and did not

require medical assistance.

       Officer Henning testified Sekula’s eyes were bloodshot and he “was emitting an odor of

alcoholic beverages. . . . Not very, very strong, but strong enough where I could smell it. I would

say moderate.” Sekula affirmed to Officer Henning that he was in an accident on Prue Road, and

explained that “he was traveling somewhere between 60 and 70 miles per hour, possibly 80, [when]

he lost control.” Referring to his notes, Officer Henning testified that Sekula told him, “To be

honest with you, completely honest, there was alcohol involved.” The officer described Sekula as

polite, talkative, and his speech as “slurred.” Sekula relayed to Officer Henning that he had

purchased twenty Budweiser beers and that he had consumed “about six” of the beers and “half a

shot of Jack Daniel’s whiskey.” On cross-examination, Officer Henning acknowledged Sekula

told him the accident was not a result of his “being drunk,” but because he was “stupid.” Based

on Sekula’s appearance and demeanor, Officer Henning decided to administer field sobriety tests.

       Outside the presence of the jury, defense counsel objected, asserting that because Officer

Henning was an expert with regard to any testimony about the horizontal gaze nystagmus test or

nystagmus in general, and the State failed to designate Officer Henning as an expert witness,

pursuant to article 39.14(b), the officer was precluded from offering testimony about the field

sobriety test or the causes of nystagmus. Defense counsel further explained he would have the
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same argument with regard to forensic expert Debra Stephens if the State planned to call her as a

witness.

       Trial Court:        Where were you yesterday before we went into voir dire and
                           picked a jury when I said, “Is there anything before trial and
                           before picking a jury that we need to talk to? Any pretrial
                           motions, any other issues we need to take up outside the jury
                           presence?” And the State said they had a motion in limine, and
                           we talked about that. And I don’t recall if you had anything at
                           all, but you certainly didn’t bring this up yesterday. Why not?
       Defense Counsel: Judge, I don’t know what they’re going to do, what experts
                        they’re going to put on.
       Trial Court:        Well, why didn’t you say, “Yes, I have an issue. They haven’t
                           given us a valid witness list.” And, “Hey, by the way, they
                           haven’t given us our discovery for the breath test.” You didn’t
                           say a word. Why?
       Defense Counsel: The breath test was because we never received proper disclosure
                        of the expert. And the witness list, it’s not my job to cure their
                        errors, Your Honor.

After the trial court denied his motion, defense counsel urged his sworn motion for continuance

asserting that under the same principles, he could not effectively cross-examine either expert.

       Trial Court:        And why didn’t you bring this to my attention yesterday before
                           we spent four and a half hours picking a jury?
       Defense Counsel: Judge, again, the State is just now bringing their experts.
       Trial Court:        Answer my question, Counsel. Why did you not bring it to my
                           attention yesterday? If you wanted a continuance, you knew the
                           State was going to put on breath-test evidence. We discussed it
                           yesterday at length. You didn’t say a word of it to the Court.
                           Why didn’t you object?
       Defense Counsel: I don’t know that they want to put on breath-test evidence.
                        There’s two other ways to prove this case.
       Trial Court:        Now, Counsel, you’re not telling the truth, so have a seat and be
                           quiet.

       The jury was brought back into the courtroom and the trial proceeded. Officer Henning

testified that he observed four clues out of six when he conducted the horizontal gaze nystagmus

test on Sekula. The officer also testified that Sekula exhibited three clues out of eight on the walk


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and turn test, and one out of four clues on the one-leg stand test. Officer Henning further testified

that, based on the totality of the circumstances, including his training and experience in viewing

intoxicated individuals, he concluded Sekula was intoxicated. Sekula was placed under arrest and

Officer Henning transported Sekula to booking where Sekula agreed to submit to a breath-alcohol

test.

        In addition to other officers at the scene, and lay witnesses, the State called Debra Stephens,

a technical supervisor with Alamo Forensic Services. Stephens explained how alcohol affects an

individual’s central nervous system and how brake-reaction time in a vehicle will be slowed. She

also testified that alcohol affects the optic nerve and an individual’s ability to see clearly,

specifically one’s peripheral vision, and an individual’s balance and coordination, both of which

are critical to operating a motor vehicle and steering safely on the roadway. Stephens also

explained that, regardless of an individual’s size, the human liver will metabolize alcohol at .0105

concentration, or approximately one drink, per hour.

        Stephens testified that “everyone has lost the normal use of their mental and physical

faculties with an alcohol concentration of 0.08.” As part of her job duties, she calibrates the

Intoxilyzer machines in Bexar County, including the machine used to test Sekula. She opined

Sekula’s test results of 0.107 and 0.122 per 210 liters of breath were accurate and performed on a

properly calibrated machine.

        Defense counsel reurged his motion for continuance. The trial court again denied the

motion.

                                              ANALYSIS

        Because Sekula’s motions for continuance turn on the trial court’s admission of Stephens’s

and Officer Henning’s testimony, we first address whether the trial court erred in allowing their

testimony.
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A.     Trial’s Court’s Admission of the Testimony of Officer Henning and Forensic Scientist
       Stephens

       1.      Standard of Review

       We review a trial court’s ruling on the admission of evidence for an abuse of discretion.

Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). More specifically, “[i]f the trial

court allows a witness who was not on the State’s list to testify, we review that decision for an

abuse of discretion.” Hamann v. State, 428 S.W.3d 221, 227 (Tex. App.—Houston [1st Dist.]

2014, pet. ref’d). Under that standard, a trial court’s ruling will only be deemed an abuse of

discretion if it is so clearly wrong as to lie outside “the zone of reasonable disagreement,” Lopez

v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is “arbitrary or unreasonable,” State v.

Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). An appellate court will uphold the

decision provided that the trial court’s decision, when viewed “at the time the ruling was made,”

Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.—Dallas 2005, no pet.), “is reasonably

supported by the record and is correct under any theory of law applicable to the case.” Brito-

Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005); see also Osbourn v. State, 92

S.W.3d 531, 538 (Tex. Crim. App. 2002) (“If there is evidence supporting the trial court’s decision

to admit evidence, there is no abuse and the appellate court must defer to that decision. Even when

the trial judge gives the wrong reason for his decision. . . .” (citations omitted)). Under our abuse

of discretion review, see Martinez v. State, 131 S.W.3d 22, 29 (Tex. App.—San Antonio 2003, no

pet.), we will uphold the trial court’s admission of the evidence if “the decision [was] correct on

any theory of law applicable to the case.” See Osbourn, 92 S.W.3d at 538.

       2.      Application of Article 39.14(b)

       Sekula argued that by filing his article 39.14(b) motion, the State was required to disclose,

no less than twenty days before the start of trial, the name and address of any expert witness the


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State planned to call. The State’s failure to timely disclose the names of any expert witnesses led

him to believe the State would not be relying on expert testimony. The trial court disagreed,

“Merely filing a motion is not enough. I know you think it is, but it’s not.”

        Prior to September 1, 2015, the State’s duty was “triggered only by a defendant’s motion

requesting disclosure of the State’s testifying experts and a trial court order.” In re Tibbe, No.

03–13–00741–CV, 2013 WL 6921525, at *2 (Tex. App.–Austin Dec. 31, 2013, orig. proceeding)

(mem. op.) (emphasis added).       Article 39.14(b) no longer requires a trial court order; the

defendant’s request alone trigger’s the State’s duty to disclose. See Act of May 21, 1999, 76th

Leg., R.S., ch. 578, § 1, 1999 Tex. Gen. Laws 3118, 3118 (amended 2015) (current version at TEX.

CODE CRIM. PROC. ANN. art. 39.14(b)). Because defense counsel’s request was sufficient to trigger

the State’s duty to disclose, we conclude the State failed to timely designate Officer Henning and

Debra Stephens in accordance with article 39.14(b).          See TEX. CODE CRIM. PROC. ANN.

art. 39.14(b). Our analysis, however, does not end here.

        3.      Prosecutor’s Bad Faith and Sekula’s Ability to Reasonably Anticipate

        In determining whether the trial court abused its discretion in allowing Stephens and

Officer Henning to testify over Sekula’s objection, we must also evaluate whether the record

supports a “showing of bad faith on the part of the prosecutor in the late designation and whether

[Sekula] could reasonably anticipate that the witness[es] would testify although [their names were]

not previously disclosed.” See Branum v. State, 535 S.W.3d 217, 226 (Tex. App.—Fort Worth

2017, no pet.) (citing Nobles v. State, 843 S.W.2d 503, 514–15 (Tex. Crim. App. 1992)); see also

Martinez, 131 S.W.3d at 29.

                a.     Bad Faith

        Reviewing courts consider three areas of inquiry when determining whether the State acted

in bad faith:
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       (1) whether the defense shows that the State intended to deceive; (2) whether the
       State’s notice left the defense adequate time to prepare; and (3) whether the State
       freely provided the defense with information (e.g., by maintaining an open files
       policy, by providing updated witness lists, or by promptly notifying the defense of
       new witnesses).

Hardin v. State, 20 S.W.3d 84, 88 (Tex. App.—Texarkana 2000, pet. ref’d) (omitted); accord

Martinez, 131 S.W.3d at 29; see also State v. LaRue, 108 S.W.3d 431, 434 (Tex. App.—Beaumont

2003), aff’d, 152 S.W.3d 95 (Tex. Crim. App. 2004) (defining a willful act as one that is “done

voluntarily and intentionally, with the specific intent to disobey the law”); Osbourn v. State, 59

S.W.3d 809, 816 (Tex. App.—Austin 2001), aff’d, 92 S.W.3d 531 (Tex. Crim. App. 2002) (stating

that evidence should not be excluded absent evidence the State acted in bad faith in failing to

disclose the evidence or willfully failed to respond to the trial court’s order under art. 39.14(b)).

       Here, Sekula’s case progressed from arrest to trial in a little over two months. The record

indicates that on July 8, 2016, thirty-one days before the start of trial, defense counsel filed a

plethora of discovery motions, including a request for the State’s witness list. Within thirty days

of the defense request, on August 8, 2016, the State filed its Witness List. Among other witnesses,

the notice identified Stephens as an expert and Officer Henning as a San Antonio Police Officer.

The record also indicates the State provided defense counsel copies of its file and the police report

through E-Discovery. Based on the lack of any evidence that the State’s failure to timely disclose

was an intentional effort to deceive Sekula, we conclude the trial court did not abuse its discretion

in finding the State’s late designation was not the result of bad faith.

               b.      Reasonably Anticipate

       We must also determine whether defense counsel could have reasonably anticipated that

the State would rely on the testimony of either Stephens or Officer Henning.




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                       (1)     Officer Henning’s Nystagmus Testimony

       Officer Henning’s name was included in the discovery materials, specifically the offense

report, provided to Sekula’s counsel when he was appointed. See Fox v. State, No. 04-15-00618-

CR, 2017 WL 96160, at *3 (Tex. App.—San Antonio Jan. 11, 2017, no pet.) (mem. op., not

designated for publication). As this court previously determined in Fox, Sekula could have

reasonably concluded that the officer who conducted the field sobriety tests, the interview, and

took the breath-alcohol specimen would be called by the State as a witness. See id.

       In the present case, not only did defense counsel have a copy of the police report, but on

July 20, 2016, defense counsel filed a Motion for Court to Take Judicial Notice of Nystagmus

Causes Other Than Alcohol.       By filing this motion, the trial court could have reasonably

determined defense counsel anticipated the State would be presenting “an officer’s testimony

relating to nystagmus.” We, therefore, conclude the trial court did not abuse its discretion in

finding Sekula could have reasonably anticipated that an officer, and more specifically Officer

Henning, would testify regarding nystagmus and the causes of nystagmus, including alcohol. See

Lemasuier v. State, 91 S.W.3d 897, 900–01 (Tex. App.—Fort Worth 2002, pet. ref’d) (noting

prosecutor’s open file and witness’s name in report in the State’s file); White v. State, No. 2-02-

143-CR, 2003 WL 865351, at *3 (Tex. App.—Fort Worth Mar. 6, 2003, pet. ref’d) (mem. op., not

designated for publication).

                       (2)     Debra Stephens Breath-Alcohol Testimony

       Similarly, the police report and the discovery provided to Sekula’s counsel included the

breath-alcohol test results showing Sekula’s breath tests exceeded the legal limit. Sekula’s counsel

could have reasonably anticipated that the State would call a witness to provide testimony

regarding the Intoxilyzer and to explain the meaning of the test results. Moreover, even assuming

that Sekula’s counsel prior to trial was under the mistaken belief that the State was not planning
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to present evidence of the breath-alcohol test results, the issue of the Intoxilyzer was discussed at

some length during voir dire. In fact, Sekula’s counsel asked the panel,

       If [the State] bring[s] you evidence of a breath test, will you make them provide—
       show that [the Intoxilyzer] provides trustworthy or reliable evidence that the blood-
       alcohol content was .08 or more at the time the person was operating the motor
       vehicle?

Without objection from defense counsel, the trial court gave the following instruction:

       Ladies and gentlemen, we’re talking about the use of what the State calls scientific
       evidence, which may be a blood or a breath test. The State, in my understanding,
       if they have that type of evidence, will supply you with experts that will testify for
       you the workings of the machine, the reliability of the machine, that sort of thing.

The breath-alcohol test remained an issue through jury selection. Potential jurors were questioned,

and the trial court even excused several potential jurors for cause, over the possible testimony

regarding Sekula’s breath-alcohol test. Assuming, arguendo, that prior to voir dire, Sekula’s

counsel was not anticipating the State would call an expert to testify regarding the Intoxilzyer,

after the State’s voir dire, and the trial court’s instruction regarding the State presenting an expert

on “the workings of” and “the reliability of” the Intoxilyzer, defense counsel should have

reasonably anticipated that the State would call Stephens and Officer Hennings as expert

witnesses. Moreover, after the jury was selected and released for the day, the trial court again

asked both defense counsel and the State if there were any other issues the court needed to address.

Defense counsel remained silent.

       The following morning, Officer Henning testified, without objection, regarding his being

called to the scene of an accident, his locating Sekula, his speaking to Sekula, and Sekula’s

statements to the officer. Only then did defense counsel object to Officer Henning’s testimony

regarding the horizontal gaze nystagmus test and Stephens’s testimony as to the breath-test

evidence.



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          The trial court questioned defense counsel as to why the question of expert testimony was

not brought to the trial court’s attention at an earlier time. After “four and a half hours picking a

jury . . . you knew the State was going to put on breath-test evidence. We discussed it yesterday

at length.” Defense counsel asserted that based on the State’s failure to properly disclose their

expert witnesses, the defense did not know that the State “want[ed] to put on breath-test evidence.

There’s two other ways to prove this case.” Like the State’s contention that defense counsel was

being disingenuous, the trial court noted, “Counsel, you’re not telling the truth.”

          We note our analysis of whether Sekula could have reasonably anticipated that Stephens’s

testimony is truly a question of content—whether Sekula could reasonably anticipate the State

would call a witness regarding the Intoxilyzer and the science of breath-alcohol concentration

levels.    In other words, whether defense counsel could prepare for trial, including cross-

examination and any defensive issues. As the trial court explained to the jury, without objection

from defense counsel, and two days before Stephens was called to testify, the State will “supply

you [the jury] with experts that will testify for you the workings of the machine, the reliability of

the machine, that sort of thing.” We cannot conclude the trial court abused its discretion in

determining Sekula could have reasonably anticipated that the State would present evidence of

Sekula’s Intoxilyzer results and the scientific explanation relating to breath-alcohol concentration

levels on the human body.

          Based on a review of the record, we conclude the record supports that defense counsel

could have reasonably anticipated both Officer Henning’s nystagmus testimony and Stephen’s

breath-test evidence. See Branum, 535 S.W.3d at 226; Martinez, 131 S.W.3d at 29.

          Because the record does not support the late designation was based on action taken in bad

faith on the part of the prosecutor, and the record supports that Sekula could have reasonably

anticipated that Officer Henning would testify regarding the nystagmus test and Stephens would
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testify regarding the breath-alcohol test, we conclude the trial did not abuse its discretion in

allowing either Officer Henning or Debra Stephens to testify. See Branum, 535 S.W.3d at 226;

see also Martinez, 131 S.W.3d at 29.

B.     Trial Court’s Denial of Sekula’s Motions for Continuance

       Sekula next contends the trial court erred in denying his motions for continuance to allow

him to prepare for Stephens’s and Officer Henning’s testimony.

       1.      Standard of Review

       “We review a trial court’s ruling on a motion for continuance for abuse of discretion.”

Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007) (citing Janecka v. State, 937 S.W.2d

456, 468 (Tex. Crim. App. 1996)).

       2.      Texas Code of Criminal Procedure Article 29.13

       Article 29.13 of the Texas Code of Criminal Procedure provides that the trial court may

grant a continuance after trial has begun “when it is made to appear to the satisfaction of the court

that by some unexpected occurrence since the trial began, which no reasonable diligence could

have anticipated, the applicant is so taken by surprise that a fair trial cannot be had.” TEX. CODE

CRIM. PROC. ANN. art. 29.13 (West 2006). To prevail, Sekula must show he was prejudiced by the

denial of the motion. See Gonzales v. State, 304 S.W.3d 838, 842–43 (Tex. Crim. App. 2010).

       Prejudice may be proven by proof of unfair surprise, an inadequate time to prepare for trial,

or an inability to effectively cross-examine or elicit crucial testimony from witnesses. See Dotson

v. State, 146 S.W.3d 285, 297 (Tex. App.—Fort Worth 2004, pet. ref’d); Janecka, 937 S.W.2d at

468.

       3.      Surprise to Sekula

       Sekula contends his motion for continuance was not urged prior to Officer Henning’s

nystagmus testimony or Stephens’s breath-alcohol testimony because defense counsel did not
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anticipate that the State would rely on the testimony of either a nystagmus or breath-test expert.

Our prior analysis that Sekula could reasonably anticipate Stephens would testify regarding

Sekula’s breath-alcohol test and the results therefrom, and Officer Henning would testify regarding

Sekula’s horizontal gaze nystagmus test and the corresponding results, is applicable under an

article 29.13 analysis as well. See DuBose v. State, 977 S.W.2d 877, 881 (Tex. App.—Beaumont

1998, no pet.) (concluding defendant could reasonably anticipate need for expert testimony to

refute medical examiner’s opinion on cause of death in autopsy); see also Harris v. State, 287

S.W.3d 785, 792–93 (Tex. App.—Houston [1st Dist.] 2009, no pet.), abrogated on other grounds

by Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009) (determining defendant should have

anticipated, based on indictment, that State would attempt to prove defendant drove at an excessive

rate of speed through lay or expert testimony).

       The record does not support, and we cannot conclude, that the State’s reliance on either

Officer Henning or Debra Stephens was an “unexpected occurrence since the trial began, which

no reasonable diligence could have anticipated, [and Sekula was] so taken by surprise that a fair

trial cannot be had.” See TEX. CODE CRIM. PROC. ANN. art. 29.13. Sekula, therefore, failed to

show any real prejudice by the trial court’s denial of his motions for continuance or that the trial

court abused its discretion in denying the motions. See Gallo, 239 S.W.3d at 764. We overrule

Sekula’s issues related to his motions for continuance.

       After the State rested its case-in-chief, the jury was excused and defense counsel reurged

his motion to suppress based on the State’s failure to show Sekula was lawfully detained; the trial

court denied the motion.




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                                     MOTION TO SUPPRESS

A.     Arguments by the Parties

       Sekula contends that because no testimony was given regarding the officers’ reasonable

suspicion to detain Sekula, the trial court erred in denying his motion to suppress in violation of

the Fourth and Fourteenth Amendments.

       The State counters that Sekula failed to preserve error because he did not make a timely

objection during the witness testimony. And even if he preserved error, the testimony supported

the conclusion that Officer Henning had a reasonable suspicion to detain Sekula.

       Before addressing the merits of Sekula’s argument, we must first determine whether Sekula

preserved his complaint for appellate review.

B.     Preservation of Error

       Texas Rule of Appellate Procedure 33.1(a) mandates that for a party to preserve error, the

defendant must present a timely objection to the trial court, state the specific grounds for the

objection, and obtain a ruling. TEX. R. APP. P. 33.1(a); accord Garza v. State, 126 S.W.3d 79, 81–

82 (Tex. Crim. App. 2004); Hinojosa v. State, 433 S.W.3d 742, 761 (Tex. App.—San Antonio

2014, pet. ref d). Because a motion to suppress is simply “a specialized objection to the

admissibility of evidence,” Sekula was required to present a “timely and sufficiently specific

[objection] to inform the trial court of [his] complaint.” See Thomas v. State, 482 S.W.3d 235,

240 (Tex. App.—Eastland 2015, no pet.) (citing Krause v. State, 243 S.W.3d 95, 102 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d)); Johnson v. State, 171 S.W.3d 643, 647–48 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d). “[T]o be timely, a motion to suppress must be presented

before the evidence or testimony is admitted.” Strehl v. State, 486 S.W.3d 110, 112 (Tex. App.—

Texarkana, no pet.) (citing Weeks v. State, 396 S.W.3d 737, 740 (Tex. App.—Beaumont 2013, pet.



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ref’d)). “If the jury hears the evidence before the trial court rules on the motion to suppress, the

motion is forfeited.” Id. (citing Weeks, 396 S.W.3d at 741).

C.      Sekula’s Motion to Suppress

        The clerk’s record contains a motion to suppress filed by Sekula on July 1, 2016. The

record does not contain a hearing on Sekula’s motion or a request to set Sekula’s motion for a

hearing.

        On the morning of August 9, 2016, the trial court heard all outstanding pretrial matters; the

jury was selected that same afternoon. After the jury was released for the day, the trial court again

asked counsel if any motions needed to be heard. The only item raised by defense counsel was his

prior objections, addressed in Sekula’s motion in limine, to statements in a videotape.

        The following morning, August 10, 2016, prior to the jury being sworn or opening

arguments, and outside the presence of the jury, the attorneys discussed the State’s presentation of

a video of Sekula from the night in question. Defense counsel conceded the admissibility of the

video, in its entirety, “[i]f he was under arrest when the officer gets there.” (emphasis added).

Although there is no mention of Sekula’s motion to suppress, and defense counsel did not request

a hearing on his motion to suppress, defense counsel asserted, “I can make that argument to the

Court at that time [in the trial].”

        The trial court, however, inquired further. Defense counsel opined that when Officer

Henning arrived at the scene, Sekula was already under arrest. Because Sekula was under arrest,

any statements made by Sekula were subject to that custodial interrogation. The State countered

that Sekula was not under arrest, he was not physically restrained, and Miranda did not apply. The

trial court “ruled’ as follows:

        Trial Court:        Well, for purposes of what we’re doing, “A,” my ruling initially,
                            right now, is going to be that he was not, quote, legally under
                            arrest at the time that all these questions and answers and
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                          whatnot were given. But I will continue to run your motion with
                          the trial so that I can get all the testimony from the officers we
                          don’t have in front of us at this time, and I’ll make a second
                          ruling either to confirm what I’m doing now and the ruling I
                          made or to change it. If I change it, then I will advise the jury,
                          instruct them that they have to disregard all these statements and
                          stuff. I don’t think that’s going to happen, but I’m giving you as
                          good a shot as I can give you. Fair enough?
       Defense Counsel: Fair, Judge.

       The jury was brought into the courtroom and the trial court administered their oath. After

opening arguments, the State began presenting its case-in-chief. Over a two-day period, the State

elicited testimony from two officers, a forensics scientist, and two witnesses. After the State

rested, and outside the jury’s presence, Sekula’s trial counsel “renew[ed]” his motion to suppress

based on the State’s failure to prove lawful detention. The trial court denied Sekula’s motion to

suppress.

       Sekula contends the trial court erred in failing to suppress his statements, all observations

by Officer Henning, and the breath-alcohol concentration test presented by Stephens. Sekula,

however, did not object to the evidence when the statements were presented, when Officer Henning

testified, or when Stephens testified. Contra Peña v. State, 353 S.W.3d 797, 807 (Tex. Crim. App.

2011) (“A complaint is timely if it is made ‘as soon as the ground of objection becomes

apparent.’”) (quoting Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991)). Instead,

Sekula waited until after all the witnesses testified and the witnesses were excused. “Requiring a

timely and specific objection is intended to afford the trial court the information and time to make

its ruling and to afford opposing counsel an opportunity to deal with the objection or to provide

alternate evidence.” Strehl, 486 S.W.3d at 112; accord Resendez v. State, 306 S.W.3d 308, 312

(Tex. Crim. App. 2009); Aguilar v. State, 26 S.W.3d 901, 905–06 (Tex. Crim. App. 2000).




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       Because Sekula waited to urge his motion to suppress until after the jury heard and saw the

objectionable evidence, he failed to present his motion to suppress in a timely manner and obtain

a ruling by the trial court. See Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim. App. 2012)

(concluding that because the “complaint was made after the testimony of the State’s final witness

. . . [the] request was clearly not timely, . . . [and] the requirements for preservation were not

met.”); Norman v. State, 480 S.W.2d 659, 660 (Tex. Crim. App. 1972) (concluding that objection

“first presented to the court in the form of a motion to suppress while the defense was presenting

its case, was clearly not timely and, consequently, presents nothing for review.”). We agree with

the State’s contention that Sekula’s motion to suppress was untimely, and as a result, and “the

requirements for preservation were not met.” Brewer, 367 S.W.3d at 253. We, therefore, overrule

his issues related to his motion to suppress.

                                        ATTORNEY’S FEES

       In his last issue on appeal, Sekula contends the evidence is legally insufficient to support

the imposition of any attorney’s fees under article 26.05(g)) of the Texas Code of Criminal

Procedure. Sekula challenges the assessment of $500.00 in attorney’s fees. He asserts the trial

court found him indigent for purposes of trial and this appeal, and there is no evidence to support

a material change in Sekula’s financial circumstance.

       The State does not challenge Sekula’s last issue on appeal and requests, “this court modify

that judgment to delete the assessment of attorney’s fees in the judgment and order the district

clerk to delete the attorney fees from the bill of costs.” “A defendant who is determined by the

court to be indigent is presumed to remain indigent for the remainder of the proceedings in the

case unless a material change in the defendant’s financial circumstances occurs.” TEX. CODE

CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2017); accord Dieken v. State, 432 S.W.3d 444, 446



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(Tex. App.—San Antonio 2014, no pet.); see also Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim.

App. 2013).

       Here, the record indicates the trial court determined Sekula was indigent and appointed

counsel to represent Sekula on June 11, 2016. The record does not contain evidence of a material

change in Sekula’s financial status. See Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App.

2013) (quoting TEX. CODE CRIM. PROC. ANN. art. 26.04(p)) (“[A] ‘defendant who is determined

by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in

the case unless a material change in the defendant’s financial circumstances occurs.’”); Ramirez

v. State, 432 S.W.3d 373, 377 (Tex. App.—San Antonio 2014, pet ref’d).

       Because there is no evidence in the record to support the imposition of attorney’s fees, and

there is no evidence of a material change in Sekula’s financial circumstances, the trial court erred

in assessing appointed attorney’s fees against Sekula.

                                          CONCLUSION

       Because the trial court erred in assessing attorney’s fees, we reform the judgment to delete

the assessment of the attorney’s fees against Sekula. Having overruled all of Sekula’s other issues

on appeal, we affirm the judgment as reformed.

                                                  Patricia O. Alvarez, Justice

DO NOT PUBLISH




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