                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00205-CR

                                        Juan Carlos GOMEZ,
                                              Appellant

                                                 v.

                                        The STATE of Texas,
                                              Appellee

                      From the County Court at Law No. 2, Webb County, Texas
                                Trial Court No. 2010 CRB 001162 L2
                               Honorable Jesus Garza, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: June 11, 2014

AFFIRMED

           A jury found appellant Juan Carlos Gomez guilty of driving while intoxicated. The trial

court sentenced Gomez to 180 days in jail; however, the trial court suspended the sentence and

placed Gomez on probation for a period of two years. On appeal, Gomez raises two issues: (1) the

trial court erred in denying his motion to suppress the blood draw evidence because there was no

probable cause to arrest and no evidence that would warrant an involuntary blood draw; and (2)

the trial court erred in denying his motion to suppress “spoliated” evidence. We affirm the trial

court’s judgment.
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        We review the trial court’s denial of a motion to suppress under a bifurcated standard of

review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). A trial court’s

determination of historical facts will be given almost total deference, while the trial court’s

application of the law will be reviewed de novo. Carmouche v. State, 10 S.W.3d 323, 328 (Tex.

Crim. App. 2000). “[T]he trial judge is the sole trier of fact and judge of credibility of the witnesses

and the weight to be given to their testimony.” St. George v. State, 237 S.W.3d 720, 725 (Tex.

Crim. App. 2007). A trial court’s ruling on a motion to suppress will be upheld if there is any

valid theory of law applicable to the case, even if the trial court did not base its decision on that

theory. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).

        There is no reporter’s record before this court with regard to either of the motions to

suppress. Although Gomez attached portions of the reporter’s record to his brief, it has long been

the law in this state that an appellate court may not consider documents attached to a brief as part

of the record on appeal. Leza v. State, 351 S.W.3d 344, 362 n.78 (Tex. Crim. App. 2011) (citing

Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004); Thompson v. State, 612 S.W.2d

925, 928 (Tex. Crim. App. 1981)); Aguero v. State, 818 S.W.2d 128, 131 (Tex. App.—San Antonio

1991, pet. ref’d). All allegations must be supported by the appellate record, and we will not accept

as fact any allegations unsupported by the record. Whitehead, 130 S.W.3d at 872; Vanderbilt v.

State, 629 S.W.2d 709, 717 (Tex. Crim. App. 1981).

        Although the court reporter is responsible for preparing, certifying, and timely filing the

reporter’s record, that responsibility is conditioned upon an appellant filing a notice of appeal,

requesting preparation of the record, and paying for the reporter’s record if he is not entitled to

appeal without paying the reporter’s fee. TEX. R. APP. P. 35.3(b). The Rules of Appellate

Procedure further provide that if the reporter’s record has not been filed because the appellant



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failed to pay the reporter’s fee, the court may consider and decide only those issues or points that

do not require a reporter’s record for a decision. Id. R. 37.3(c)(2)(A).

        In this case, the trial court determined Gomez was not indigent and was not entitled to a

free reporter’s record. On May 30, 2013, the court reporter responsible for preparing the reporter’s

record in this case filed a notification of late record stating the reporter’s record had not been filed

because Gomez had failed to pay or make arrangements to pay the reporter’s fee and he was not

entitled to appeal without paying the fee. Accordingly, on June 5, 2013, we ordered Gomez to

provide written proof to this court on or before June 17, 2013, that he had made arrangements to

pay the fee or he was in fact entitled to the record without paying the fee. In the order we advised

Gomez that if he did not respond, this court would consider only those issues or points in his brief

that did not require a reporter’s record for a decision. See id. R. 37.3(c). Gomez did not comply

with our order. We subsequently issued three additional orders in which we reminded Gomez of

the consequences of his failure to respond to our initial order. Despite this, Gomez failed to file

any response with regard to payment for the reporter’s record. Because Gomez failed to provide

this court with a reporter’s record, and we gave him ample opportunity to do so, we must determine

whether the issues presented may be decided without a reporter’s record. See id.

       Here, the absence of a reporter’s record is fatal to Gomez’s appellate contentions because

the clerk’s record alone does not establish an abuse of discretion with regard to either motion to

suppress. See Portillo v. State, 117 S.W.3d 924, 929 (Tex. App.—Houston [14th Dist.] 2003, no

pet.). Gomez contends the testifying officer failed to “articulate facts that would establish that

Gomez had lost the normal use of his faculties,” and therefore, there was no probable cause to

arrest him. Whether a trial court erred in denying a motion to suppress for lack of probable cause

to arrest depends upon the evidence presented during the motion to suppress hearing. See Torres

v. State, 182 S.W.3d 899, 901–02 (Tex. Crim. App. 2005) (holding probable cause exists for
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warrantless arrest when facts and circumstances within officer’s knowledge are sufficient to

warrant person of reasonable caution to believe offense was or is being committed). In the absence

of a reporter’s record, we have no evidence to review to determine whether the State, through the

officer, produced evidence to establish Gomez was driving under the influence. Thus, we have an

insufficient record upon which to determine whether the trial court abused its discretion.

       With regard to the motion to suppress based on spoliation, i.e., destruction of evidence,

Gomez is faced with a similar problem. Gomez contends that because the blood drawn after his

arrest was destroyed, thereby preventing him from independently testing the evidence, the trial

court erred in denying his motion to suppress the results of the blood draw. However, the Supreme

Court has specifically held that with regard to preservation of evidentiary material, unless the

defendant can show bad faith on the part of law enforcement, “failure to preserve potentially useful

evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51,

58 (1988). Moreover, the defendant who complains about the destruction of evidence must

demonstrate to the trial court that the evidence is both favorable and material to his case. Salazar

v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.). Here, in the absence of a

reporter’s record, we cannot determine the existence of bad faith or that the blood evidence was

favorable and material to Gomez’s case. Accordingly, the record is insufficient to determine

whether the trial court abused its discretion.

       Based on the foregoing, we overrule Gomez’s issues and affirm the trial court’s judgment.


                                                  Marialyn Barnard, Justice

Do Not Publish




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