AFFIRMED; Opinion Filed July 18, 2013.




                                           In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                      No. 05-12-00136-CR

                           CHERIE ROSANN JENSEN, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 4
                                   Collin County, Texas
                           Trial Court Cause No. 004-82945-2011

                                          OPINION
                            Before Justices Bridges, Lang, and Myers
                                    Opinion by Justice Lang

       Appellant Cherie Rosann Jensen pleaded not guilty to driving while intoxicated.

Following a bench trial, the trial court convicted appellant of that offense and assessed

punishment at sixty days’ confinement, suspended for one year, and a $400 fine. In two issues

on appeal, appellant contends (1) the evidence is insufficient to support her conviction and (2)

the trial court erred by not granting her motion for new trial because “the verdict is contrary to

the law and the evidence” and “exculpatory evidence” was intentionally withheld by the

prosecution. We decide against appellant on her two issues. The trial court’s judgment is

affirmed.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       Officer Jason Moses of the Plano Police Department testified at trial that at

approximately 1:00 a.m. on March 31, 2011, he was on patrol in the area of northbound Central
Expressway (“Central”) in Plano. He noticed a silver Honda Accord sitting with its lights on in

the parking lot of a business that had been closed for several hours. As Moses approached the

vehicle, it traveled from the parking lot onto the northbound Central service road. Moses

testified the traffic light at 15th Street and northbound Central was red and the vehicle “stopped

at the light beyond the stop line in the middle of the crosswalk,” which Moses stated is

considered a traffic violation. According to Moses, when the light turned green, the vehicle

accelerated “at a fairly high rate of speed.” Moses began following the vehicle. He stated the

vehicle accelerated further to between 60 and 70 miles per hour on the service road, which has a

speed limit of 45 miles per hour. Near Park Boulevard, Moses initiated a traffic stop by turning

on his overhead lights. He stated the vehicle continued traveling in the center lane of the service

road, “kind of weaving a little bit” in the lane. Then, the vehicle moved to the far left lane and

entered highway U.S. 75.      Moses followed the vehicle with his overhead lights and siren

activated. He testified the vehicle eventually stopped on the shoulder of highway U.S. 75 just

north of Parker Road. According to Moses, about one minute passed from the time he first

activated his overhead lights until the time the vehicle stopped.

       Moses approached the driver’s side of the vehicle, noticing appellant was the driver and

sole occupant. Moses stated appellant “had bloodshot, watery eyes, and there was a strong smell

of, like, mouthwash coming from the vehicle.” Further, Moses testified appellant told him she

had consumed two martinis at around 5:00 p.m. Moses called for backup. In response to his

call, two officers, Manthe and Muse, arrived together at the scene. Moses testified that at that

point, Manthe, who was “in training,” took over the investigation.

       On cross-examination, Moses testified in part as follows:

       Q. On this occasion, the bottom line is, you didn’t really make an evaluation of
       whether or not Ms. Jensen was intoxicated. Is that fair?



                                                –2–
       A. I didn’t do tests. I briefly talked to her. I couldn’t have made a valid concrete
       whether [sic] or not—no.

       Jason Manthe testified that at the time of the events in question he was an officer with the

Plano Police Department and was certified to administer standardized field sobriety tests

(“SFSTs”). In response to Moses’s call, he arrived at the scene described above with his field

training officer, Muse, and took over the investigation. Manthe testified appellant was in her

vehicle and he approached from the passenger side. He stated appellant “appeared to have

bloodshot eyes” and told him she had consumed two drinks. Manthe asked her to step out of the

vehicle. Then, he administered three SFSTs: the “HGN test,” the “walk-and-turn test,” and the

“one-leg stand.” Manthe stated he had administered those tests before on “a few” occasions. He

testified he gave appellant instructions before each test.       According to Manthe, appellant

indicated to him that she understood those instructions and did not mention any physical or

mental problems that might inhibit her ability to perform the tests.

       Manthe testified that in conducting the HGN test, he positioned appellant so that she was

looking away from traffic and facing a wall. He stated the HGN test involves checking for six

“possible clues” pertaining to “horizontal gaze nystagmus,” which can indicate intoxication.

Manthe testified appellant “demonstrated” all six of those. Further, Manthe testified (1) the

walk-and-turn test involves eight “possible clues” and he observed seven of those while testing

appellant and (2) the one-leg stand test involves four “possible clues” and appellant

“demonstrated” three of those.

       Manthe stated that based on his training, experience, and observations, he believed

appellant was intoxicated. He placed her under arrest and transported her to jail. Upon arrival at

the jail, appellant was taken to the “intoxilyzer room” and given the opportunity to provide a

breath sample. According to Manthe, appellant refused to provide a breath sample.



                                                –3–
       A video recording of the traffic stop in question and Manthe’s administering of the

SFSTs was admitted into evidence. Additionally, a video recording of Manthe’s interaction with

appellant in the “intoxilyzer room” was admitted into evidence. Manthe stated he had viewed

both video recordings earlier that day before coming to testify and the recordings were fair and

accurate depictions of the events in question.

       On cross-examination, Manthe testified in part as follows:

       Q. (By [defense counsel]) Now, Officer, you seem to be suggesting today in your
       testimony that—or let me ask you this: Are you saying that you correctly
       performed the standardized field sobriety tests with respect to Ms. Jensen?

       A. I believe so.
       ....
       Q. . . . Do you recall in the videotape approaching the—your training officer,
       Officer Muse, and telling him that this area where you were going to perform the
       field sobriety test on Ms. Jensen is slanted? Do you remember telling him that?

       A. Yes, sir.

       Q. And in his response—and whether it was—you were concerned about whether
       it was too slanted to be properly placed to perform the field sobriety tests; is that
       fair?

       A. Right.

       Q. And your training officer’s response was to basically throw up his hands and
       say, “If you think it’s slanted then you do,” right?

       A. Correct.

       Q. And would it be fair to say that kind of left you not really sure whether it was a
       good place or not to perform the test?

       A. Correct.

       Q. And you didn’t get much input from your training officer; is that fair?

       A. Right.

       Q. So, you came back to Ms. Jensen and she expressed concern about it being
       slanted, but you—but you went ahead and did the test. And the truth of the matter
       is, the manual says it should be a level surface that the test is performed on.
       Would you agree?
                                                 –4–
       A. Correct.

       Q. So, would you agree in that respect the reliability of the field sobriety test is
       uncertain?

       A. Correct.

       Q. Okay. And that’s all I’m saying. Your training at that point—you hadn’t even
       completed your training, correct?

       A. Correct.

       Q. And so, your training was relative to a police officer that’s not a rookie. Your
       training was minimal. Your experiment [sic] was minimal. Is that true?

       A. Correct.

       Q. So, that’s what I’m getting. The bottom line is, both with respect to the way the
       test was performed and the reliability of the results, would you agree it’s
       uncertain?

       A. Correct.

       Q. In other words, you might still hold the opinion—well, you suspect that Ms.
       Jensen may have been under the influence of alcohol, but you’re not saying that it
       eliminates every reasonable basis for doubt that the tests do?

       A. Correct.

       Q. In other words, there’s still a reasonable question as to whether she was
       intoxicated or she’s not?

       A. Correct.

       On redirect examination, Manthe was asked whether “any type of road slant” would

affect the HGN test. Manthe stated “no, I don’t think so.”

       After the State rested its case, the defense called Officer Muse as a witness. A video

recording depicting the scene of the events in question during daylight was admitted into

evidence. Muse testified that video recording fairly and accurately depicted the area in question.




                                               –5–
          Following the trial court’s finding of guilt, appellant filed a motion for new trial.1 At the

hearing on that motion, Manthe and counsel for the defense were the only witnesses. Manthe

stated that prior to trial in this case, he, Moses, and Muse met with the prosecutor and “reviewed

the videotape.” Additionally, Manthe testified in part as follows:

          Q. [by defense counsel] The fact is, that whatever certification you had, you’re
          just not confident that the training you were provided was adequate to allow you
          to evaluate, effectively, Ms. Jensen’s intoxication; is that fair?

          A. Correct.

          Q. And, in fact, you do not feel confident that your evaluation of Ms. Jensen’s
          intoxication was well founded; is that fair?

          A. Correct.

          Q. And you continue to believe that there is serious reason to doubt whether Ms.
          Jensen was intoxicated. Is that also true?

          A. Correct.

          Q. And the other two officers who also saw the same tape the judge saw and were
          out there—saw the same driving themselves, saw the—who were out there at the
          scene and observed the same conduct, neither of those other officers testified that
          they believed that they had sufficient evidence to testify as to Ms. Jensen’s
          intoxication; isn’t that true? Isn’t that what the prosecutor was told before you all
          met in this case?

          A. I believe so.
          ....
          Q. Well, Officer, bottom line is, the other two officers in your presence—you
          guys looked at the tape, you talked to the prosecutor, and the other two officers
          told the prosecutor that they really didn’t have enough evidence to form an
          opinion about whether she was intoxicated or not, correct?

          A. Correct.

          On cross-examination, Manthe stated in part

          Q. [by prosecutor] Okay. Just to be clear, Officer Moses made the stop on the car,
          you took over the DWI investigation, and the other officer was your field training


   1
       The record on appeal does not contain appellant’s motion for new trial.



                                                                     –6–
officer. Whose decision was it to determine whether there was probable cause to
arrest the defendant that night?

A. That would have been mine and Officer Muse’s.
....
Q. Now, Officer Moses, who’s the officer who made the traffic stop, did his role
pretty much end once you came on scene and took over the investigation?

A. Yeah. Yes, ma’am.

Q. So, in that capacity as the officer who made the traffic stop, would he
necessarily be the person to come in and testify as to whether or not he had an
opinion about the defendant’s intoxication level that night?

A. No, ma’am.

Q. That would have been you, right?

A. Correct.

Subsequently, the following exchange occurred between Manthe and the trial court:

THE COURT: On the day of trial I don’t think you were as strongly opinionated
that you weren’t trained properly or that you weren’t confident in your training; is
that true?

[MANTHE]: Possibly, yes, sir.

THE COURT: You followed your training, is that correct, when you administered
the field sobriety tests?

[MANTHE]: Yes, sir.

THE COURT: Did you do it the way you were trained?

[MANTHE]: Yes, sir.

THE COURT: Are you confident that what you testified to on the day of the trial,
that was the truth?

[MANTHE]: Yes, sir.

THE COURT: So, when you say you saw six clues, did you see those six clues?

[MANTHE]: Yes, sir.




                                        –7–
THE COURT: Today you seem less confident even than you were on the day of
trial. I’m assuming maybe you’re less confident than on the day you made the
arrest. Is that fair to say? Have you begun to doubt yourself?

[MANTHE]: Perhaps.

THE COURT: I mean, do you know for sure whether you’re doubting yourself?

[MANTHE]: Not that I recall—I mean, not that I know of.

THE COURT: Do you have the same opinion today as you did on the day of trial?

[MANTHE]: Yes, sir.

THE COURT: Do you have the same opinion today as you did on the day you
made the arrest?

[MANTHE]: Yes, sir.

THE COURT: Do you believe that the defendant was intoxicated when you
arrested her?

[MANTHE]: Yes, sir.

THE COURT: Do you believe that today.

[MANTHE]: I believe so, yes, sir.

THE COURT: Are you confident of that today?

[MANTHE]: I think so, yeah.

On redirect examination, Manthe testified as follows:

Q. [by defense counsel] You don’t feel confident that you actually saw those clues
and you didn’t feel confident then that you saw the clues, right? Because you
didn’t have the adequate training to feel confident, right?

A. Possibly.

Q. I don’t want to hear “possibly.” I want to hear “yes” or “no.” Either you say
that the training wasn’t adequate—you said you didn’t feel confident about her
performing these tests and the results of them; isn’t that true?

A. Right. Yes, sir.

Q. At the trial—at the trial of this case you said you didn’t know whether they
were performed correctly, right? All of them, right?
                                       –8–
A. Right.

Q. And as a matter of fact, when the prosecutor was asking you the questions
originally, you would answer “yes, yes, yes.” And then when you got to the part
where you’re talking about the clues, you would say in every case, “I think so.”
Right?

A. Correct.

Q. Because you didn’t feel confident, right?

A. Right.

Q. What you said at trial and what you still believe after looking at the videotape
more than once, you have a reasonable doubt about whether or not Ms. Jensen is
guilty, right?

A. Right.
....
Q. And the other training officer who was there, he wasn’t confident if Ms. Jensen
was guilty, either, based on what he saw, was he?

A. I’m not positive on that.
....
Q. And the bottom line is, that in terms of clues, you’re just not sure whether or
not you observed the clues? And that was true that night, and it’s been true the
whole time, right?

A. Right.

On further cross-examination by the State, Manthe testified in part

Q. [by prosecutor] What was you[r] opinion of the defendant’s condition on the
night of the arrest?

A. That—I mean, at the time, that she was intoxicated.

Q. And when you testified at this trial, what was your opinion about whether or
not you had probable causes [sic] to arrest the defendant that night?

A. That she was intoxicated.

Q. Okay. Now, today do you feel like that’s being called into question—like
you’re calling any of that into question?

A. No, ma’am.

                                       –9–
         Finally, on subsequent redirect examination by defense counsel, Manthe testified in part

         Q. Bottom line—bottom line is, you don’t really know with any level of
         confidence whether or not there was probable cause to believe that Ms. Jensen
         was intoxicated. Isn’t that a fair statement?

         A. Right.

         Defense counsel testified in part at the hearing

         Two of the officers had seen the videotape and seen the other materials and said
         that they didn’t have a basis for believing that the defendant was intoxicated. . . .
         None of that, which I believe is exculpatory and the officer testified was disclosed
         to the prosecution, was provided to me before the trial of this case.

Further, during closing argument, defense counsel asserted in part, “I think the evidence is

overwhelmingly clear that this should have been disclosed and it wasn’t, and it should have

been.”

         Appellant’s motion for new trial was denied by the trial court. This appeal timely

followed.

                            II. SUFFICIENCY OF THE EVIDENCE

         In her first issue, appellant contends “[t]he evidence presented at trial is insufficient to

sustain a verdict of guilty for driving while intoxicated” because “[t]he clear weight of the

evidence suggests that a rational trier of fact could not have found the essential elements of DWI

beyond a reasonable doubt.”

         The State responds “[t]he evidence presented at trial is sufficient to sustain a finding of

guilt based on appellant’s driving behavior, admission to drinking, poor performance on the

SFSTs, and her refusal to provide a breath sample.”

                                       A. Standard of Review

         In reviewing a challenge to the sufficiency of the evidence, we examine all of the

evidence in the light most favorable to the verdict and determine whether a rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt. Jackson v.
                                                 –10–
Virginia, 443 U.S. 307, 319 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012);

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). When the record supports

conflicting inferences, a reviewing court must presume that the fact-finder resolved the conflicts

in favor of the prosecution and defer to that determination. Wise, 364 S.W.3d at 903. The fact-

finder exclusively determines the weight and credibility of evidence. See id.; Wirth v. State, 361

S.W.3d 694, 698 (Tex. Crim. App. 2012); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Mattias v.

State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987) (trial judge acting as fact-finder can reject

any or all testimony of witness, even if uncontroverted).

                                                           B. Applicable Law

           A person commits the offense of driving while intoxicated if the person is intoxicated

while operating a motor vehicle in a public place. See TEX. PENAL CODE ANN. § 49.04(a) (West

2011 & Supp. 2012).2 “Intoxicated” means “not having the normal use of mental or physical

faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous

drug, a combination of two or more of those substances, or any other substance into the body.”

Id. § 49.01(2)(A) (West 2011). A conviction for the offense of driving while intoxicated may be

supported solely by circumstantial evidence, which is as probative as direct evidence. Kuciemba

v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010).

           Evidence that may logically raise an inference that a defendant was intoxicated includes,

among other things, slurred speech, bloodshot eyes, the odor of alcohol on the person or breath,

unsteady balance, erratic driving, inability to perform field sobriety tests or follow directions,

and any admissions by the defendant concerning what, when, and how much he had been

drinking. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010); Cotton v. State, 686

   2
       Because the recent amendments to section 49.04 are not material to this appeal, we cite to the current version of the statute.



                                                                      –11–
S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985). Further, a defendant’s refusal to submit to the

taking of a specimen of breath or blood, whether the refusal was express or the result of an

intentional failure to give the specimen, may be introduced into evidence at the defendant’s trial

and considered as evidence of guilt. See TEX. TRANSP. CODE ANN. § 724.061 (West 2011);

Finley v. State, 809 S.W.2d 909, 913 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d); see

also Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (evidence of refusal to

submit to breath test is relevant to show “consciousness of guilt”).

                                            C. Analysis

       Appellant contends the SFSTs administered in this case were not conducted according to

the “prescribed methods” in the “training manual DWI Detection & Standardized Field Sobriety

Testing: Student Manual” (emphasis original). Specifically, appellant asserts the tests were

conducted on “uneven ground.” Additionally, appellant asserts Manthe testified he (1) “did not

know whether he properly conducted the SFSTs,” (2) “received substandard training in respect to

making a determination of intoxication,” (3) “did not properly apply relevant standards,” and (4)

“is not certain whether he had probable cause to arrest appellant.” In support of those assertions,

appellant cites excerpts from the trial and hearing testimony set out above. Further, appellant

argues her speech was “clear and coherent—not slurred,” she “did not smell of alcohol,” and

“aside from walking along an uneven crack in the shoulder of a busy highway toward oncoming

traffic, [she] exhibited no signs of loss of balance.” According to appellant, “[e]ven taken in the

light most favorable to the verdict, the evidence only tends to show that Appellant’s driving was

inattentive, that she was unable to balance on a crack in the road, ten feet from highway traffic,

and that she was understandably nervous.”

       As described above, the record shows Manthe testified (1) he believed that he performed

the SFSTs correctly, (2) appellant demonstrated all six “possible clues” on the HGN test, seven

                                               –12–
of eight “possible clues” on the walk-and-turn test, and three of four “possible clues” on the one-

leg stand test, and (3) based on his training, experience, and observations, he believed appellant

was intoxicated. Even assuming without deciding that the record supports conflicting inferences

as to Manthe’s testimony respecting the SFSTs, we presume the trial court resolved any conflict

in favor of the State and defer to that determination. See Wise, 364 S.W.3d at 903. Further,

Manthe testified he did not think “any type of road slant” would affect the HGN test. Appellant

does not otherwise explain how the HGN test was not properly administered. Finally, in addition

to the evidence respecting the SFSTs, the record shows appellant (1) “stopped beyond the stop

line” at a traffic light, (2) accelerated quickly and exceeded the speed limit on the service road,

(3) had “bloodshot, watery eyes,” (4) admitted having two drinks earlier that evening, and (5)

refused to take a breath test. See Kirsch, 306 S.W.3d at 745; Cotton, 686 S.W.2d at 142 n.3;

Finley, 809 S.W.2d at 913. It was the sole province of the trial court as fact-finder to determine

the weight and credibility of the evidence. See Wise, 364 S.W.3d at 903. We conclude the

evidence in the record is sufficient to support appellant’s conviction.

       We decide appellant’s first issue against her.

                        III. DENIAL OF MOTION FOR NEW TRIAL

       In her second issue, appellant contends the trial court erred by not granting her motion for

new trial because (1) the “verdict” is contrary to the law and the evidence and (2) “exculpatory

evidence” was withheld from appellant.

       The State responds that the trial court properly denied appellant’s motion for new trial

because (1) legally sufficient evidence supported the conviction and (2) “the State did not

withhold any favorable evidence from Appellant and the evidence Appellant claims to be

favorable would not have changed the outcome of the trial.”




                                               –13–
                                      A. Standard of Review

        An appellate court reviews a trial court’s denial of a motion for new trial for an abuse of

discretion, reversing only if the trial judge’s opinion was “clearly erroneous and arbitrary.” Riley

v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). A trial court abuses its discretion if no

reasonable view of the record could support the trial court’s ruling. Id. “This deferential review

requires the appellate court to view the evidence in the light most favorable to the trial court’s

ruling.” Id. “The appellate court must not substitute its own judgment for that of the trial court

and must uphold the trial court’s ruling if it is within the zone of reasonable disagreement.” Id.

Where there are two permissible views of the evidence, the fact-finder’s choice between them

cannot be clearly erroneous. Id.; see also Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim.

App. 2013) (trial court, as fact-finder, is sole judge of witness credibility at hearing on motion

for new trial).

                                         B. Applicable Law

        “The Supreme Court in Brady v. Maryland held ‘that the suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.’” Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) (quoting Brady v.

Maryland, 373 U.S. 83, 87 (1963)). “The Supreme Court later explained that Brady essentially

created a federal constitutional right to certain minimal discovery.” Pena v. State, 353 S.W.3d

797, 809 (Tex. Crim. App. 2011).          To establish a claim under Brady, a defendant must

demonstrate “(1) the State failed to disclose evidence, regardless of the prosecution’s good or

bad faith; (2) the withheld evidence is favorable to him; [and] (3) the evidence is material, that is,

there is a reasonable probability that had the evidence been disclosed, the outcome of the trial




                                                –14–
would have been different.” Ex parte Miles, 359 S.W.3d at 665 (citing Hampton v. State, 86

S.W.3d 603, 612 (Tex. Crim. App. 2002)).

       Rule 21.3 of the Texas Rules of Appellate Procedure provides in part that a defendant in

a criminal case must be granted a new trial when “the verdict is contrary to the law and the

evidence” or “evidence tending to establish the defendant’s innocence has been intentionally

destroyed or withheld, thus preventing its production at trial.” TEX. R. APP. P. 21.3(e), (h).

                                            C. Analysis

       In support of her contention that “the verdict is contrary to the law and evidence,”

appellant “incorporates” her arguments pertaining to her first issue and relies solely on those

arguments. In addressing appellant’s first issue above, we concluded the evidence is sufficient to

support appellant’s conviction.    Accordingly, we conclude the trial court did not abuse its

discretion by denying appellant’s motion for new trial on this ground.

       Next, we address appellant’s contention respecting “withholding of exculpatory

evidence.” According to appellant,

                At the hearing on the motion for new trial, Officer Manthe testified he
       watched the arrest video just prior to trial with the prosecutor and the other two
       officers present at the scene, and that neither of those two officers would be able
       to testify to the intoxication of Appellant. The fact that two officers certified in
       administration of SFSTs and present at the scene of the arrest were unable to
       testify to Appellant’s intoxication after watching the arrest video was not
       disclosed to Appellant’s counsel prior to trial. This evidence, if disclosed and
       developed at trial, would likely have led to a different outcome at trial.
                At Appellant’s trial, only Officer Manthe was questioned about his
       evaluation of the Appellant’s intoxication. If the other two, more experienced
       officers, each having just viewed the arrest video had been asked and testified to
       their inability to make a determination of Appellant’s intoxication, the combined
       weight of the evidence would have weighed much more heavily against the fact-
       finder’s eventual determination of guilt. The testimony of two trained and
       certified police officers, both of whom watched the arrest video just before trial
       and yet were unable to testify to the Appellant’s intoxication, would have
       substantially benefitted Appellant’s case. Officer Manthe was the only witness
       able to testify that the tests were not conducted properly, he was not certain that
       the SFSTs were reliable, and that he may have lacked probable cause to make an
       arrest. The evidence intentionally withheld by the prosecution sufficiently
                                               –15–
        undermined the fairness of the trial and has sufficiently undermined any
        confidence in the outcome of the proceeding.

        Appellant’s only citation to the record in support of her argument directs us to the

following testimony of Manthe:

        Q. And you continue to believe that there is serious reason to doubt whether Ms.
        Jensen was intoxicated. Is that also true?

        A. Correct.

        Q. And the other two officers who also saw the same tape the judge saw and were
        out there—saw the same driving themselves, saw the—who were out there at the
        scene and observed the same conduct, neither of those other officers testified that
        they believed that they had sufficient evidence to testify as to Ms. Jensen’s
        intoxication; isn’t that true? Isn’t that what the prosecutor was told before you all
        met in this case?

        A. I believe so.

        Appellant does not explain, and the record does not show, how this testimony supports

her contention that Moses and Muse “were unable to testify to the Appellant’s intoxication.”

Rather, the testimony cited by appellant, on its face, addresses only whether it is true that

“neither of those other officers testified that they believed that they had sufficient evidence to

testify as to Ms. Jensen’s intoxication.” Appellant does not explain how lack of testimony as to a

particular matter constitutes evidence that must be disclosed by the State, nor does appellant cite

authority for that position.

        Even assuming without deciding that the testimony cited by appellant can be construed as

an assertion by Manthe that it was communicated to him that neither Moses nor Muse “believed

that they had sufficient evidence to testify as to Ms. Jensen’s intoxication,” the record shows

Manthe also testified at the hearing

        Q. And the other training officer who was there, he wasn’t confident if Ms. Jensen
        was guilty, either, based on what he saw, was he?

        A. I’m not positive on that.

                                               –16–
Further, contrary to appellant’s assertion that “[a]t Appellant’s trial, only Officer Manthe was

questioned about his evaluation of the Appellant’s intoxication,” the record shows Moses was

asked at trial, “On this occasion, the bottom line is, you didn’t really make an evaluation of

whether or not Ms. Jensen was intoxicated. Is that fair?” Moses replied, “I didn’t do tests. I

briefly talked to her. I couldn’t have made a valid concrete whether [sic] or not—no.”

       On this record, we conclude the trial court reasonably could have concluded appellant did

not meet her burden to show evidence was withheld by the State. See Ex parte Miles, 359

S.W.3d at 665; TEX. R. APP. P. 21.3(e); see also Okonkwo, 398 S.W.3d at 694; Clarke v. State,

305 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (trial judge at hearing

on motion for new trial reasonably could have disbelieved portion of witness’s uncontroverted

testimony that provided the only proof of essential element as to alleged Brady violation).

Therefore, we conclude the trial court did not err by denying appellant’s motion for new trial.

See Riley, 378 S.W.3d at 457.

       We decide appellant’s second issue against her.

                                      IV. CONCLUSION

       We decide against appellant on her two issues. The trial court’s judgment is affirmed.



                                                     /Douglas S. Lang/
                                                     DOUGLAS S. LANG
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
120136F.U05




                                              –17–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CHERIE ROSANN JENSEN, Appellant                        On Appeal from the County Court at Law
                                                       No. 4, Collin County, Texas
No. 05-12-00136-CR         V.                          Trial Court Cause No. 004-82945-2011.
                                                       Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                           Bridges and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 18th day of July, 2013.




                                                   /Douglas S. Lang/
                                                   DOUGLAS S. LANG
                                                   JUSTICE




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