Affirmed and Memorandum Opinion filed October 24, 2017.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-16-00673-CR

                    QUINCEY NUNEZ REYNOSA, Appellant
                                           V.
                        THE STATE OF TEXAS, Appellee

                     On Appeal from the 230th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1472480

                  MEMORANDUM                        OPINION
      Appellant Quincey Reynosa appeals his conviction for driving while
intoxicated (“DWI”). In two issues, he argues: (1) the trial court erred in refusing to
include a requested jury instruction under article 38.23 of the Texas Code of
Criminal Procedure, which would have allowed the jury to determine whether he
consented to giving a blood sample before the jury considered the blood-test results
as evidence of appellant’s intoxication; and (2) his constitutional rights were violated
by the State’s failure to disclose allegedly exculpatory material until after trial.
      For the reasons that follow, we affirm. As our disposition rests on settled
principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.4.

                                    Background

      Shortly after midnight on June 21, 2015, Harris County Sheriff’s Office
Deputy Chadrick O’Bryant observed appellant drive northbound on State Highway
249 and veer into oncoming traffic, nearly causing a collision with another vehicle.
Deputy O’Bryant stopped appellant’s car, and the deputy observed that appellant
had bloodshot eyes, slurred speech, and a strong odor of alcohol. Deputy O’Bryant
asked appellant to step out of his car and, after appellant did so, the deputy
administered the horizontal gaze nystagmus (“HGN”) test, which is a standard field
sobriety test. Appellant displayed six out of six clues of intoxication. After securing
appellant in the rear of his patrol vehicle, Deputy O’Bryant searched appellant’s
vehicle and found in the front center console two empty forty-ounce alcoholic-
beverage containers and one half-empty forty-ounce alcoholic-beverage container,
which was cold to the touch. The cold half-empty container indicated to Deputy
O’Bryant that it had been recently opened and consumed.

      Deputy O’Bryant took appellant to the DWI room at a nearby police
substation, where appellant refused to perform additional sobriety tests, specifically
the walk-and-turn and one-leg-stand tests. Deputy O’Bryant filmed his interaction
with appellant in the DWI room, but the video has no sound. After being warned of
the statutory consequences of refusing or agreeing to submit to a breath or blood test,
appellant consented, according to Deputy O’Bryant, to provide a blood sample.

      Appellant was then transferred to Houston Police Department’s (“HPD”)
intoxication facility. On a video recording with sound, taken from the blood-draw
room, an off-camera police officer is heard speaking to appellant, “It is my
understanding you have consented to the blood draw. To the left is a registered
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nurse, and she is going to draw your blood, okay?” It is unclear from the video
whether appellant responds, either verbally or nonverbally. The video also shows a
nurse confirming with appellant that he had consented to the blood draw and
requesting appellant to sign a consent form “if [he] agree[d] to give a blood
specimen.” Appellant signed the consent form.

       Jessica Carillo, a registered nurse who works for HPD’s DWI Task Force and
drew appellant’s blood sample, testified that, by the time a suspect is brought to the
blood-draw room, either the suspect has consented to a blood draw or the police have
obtained a warrant. The nurses who draw blood verify the suspect’s consent or
verify the warrant authorizing the blood draw. If there is any question about consent,
it will be resolved prior to blood being drawn. Carillo testified that she was confident
appellant had consented to the blood draw.

       The results of appellant’s blood test revealed a blood alcohol content of 0.196,
more than double the legal limit of 0.08.1

       Appellant was indicted for third-degree felony DWI,2 and the case proceeded
to a jury trial. During trial, the trial court held a hearing on appellant’s motion to
suppress, which sought to exclude the blood-test results on the ground that appellant
had not consented to the blood draw. After hearing testimony from Deputy O’Bryant
and appellant, the trial court denied the motion. The court found appellant freely
and voluntarily consented to the blood draw “as contained by his signature in State’s
Exhibit No. 7 [the signed consent form] and what is contained on State’s Exhibit No.
4, being the video of the blood draw room, as well as the testimony of the deputy.”


       1
         See Tex. Penal Code § 49.01(2)(B) (defining “intoxicated” as, relevantly, having an
alcohol concentration of 0.08 or more).
       2
         See Tex. Penal Code §§ 49.04, 49.09(b)(2) (offense is third-degree felony if, inter alia,
the person has previously been twice convicted of DWI).

                                                3
       After both sides rested, appellant requested a jury instruction that would have
advised the jury to first determine whether appellant consented to the blood draw,
and if the jury found he did not, to disregard the test results as evidence of appellant’s
guilt. As he had argued during the pre-trial suppression hearing, appellant again
argued that the DWI room video showed appellant shaking his head, which appellant
argued raised a fact issue as to whether he had consented to the blood draw. The
trial court refused the requested instruction.

       The jury found appellant guilty of the charged offense, which was enhanced
by two previous convictions. Appellant elected that the trial court assess his
punishment, and the court sentenced appellant to thirty years’ confinement.

       This appeal timely followed.

                                             Analysis

       Appellant challenges his conviction in two issues. First, appellant contends
that the trial court erred in refusing his requested jury instruction under article 38.23
of the Texas Code of Criminal Procedure.                       Second, appellant claims his
constitutional rights were violated by the State’s failure to disclose allegedly
exculpatory material until after the jury’s verdict.3

A.     Jury Instruction

       We first address appellant’s argument that the trial court erroneously refused
his requested jury instruction regarding consent for a blood draw. At the charge
conference, appellant’s counsel pointed to video evidence purportedly showing
appellant shaking his head back and forth in response to the officer’s question

       3
          In an early section of appellant’s brief, he states another issue for consideration, arguing
that the warrantless blood draw violated his constitutional right to be free from unreasonable search
and seizure. Appellant does not brief this issue, however, and therefore we do not address it on
appeal. See Tex. R. App. P. 38.1(i).

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whether appellant consented to a blood draw. Contending the video raised a fact
issue on consent, appellant requested an article 38.23 instruction in the jury charge,
which would have allowed the jury to determine whether the blood test was obtained
without a warrant or consent before considering that evidence in deciding appellant’s
guilt or innocence. See Tex. Code Crim. Proc. art. 38.23(a). The trial court denied
appellant’s requested instruction.

       1. Standard of review and governing law

       We review a complaint about jury-charge error in two steps. We first
determine whether an error occurred. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.
Crim. App. 2012). If so, we then analyze the error for harm. Id. There are separate
standards for the harm analysis, depending on whether the defendant preserved error
by timely raising the complaint. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim.
App. 2016); see also Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013)
(party may preserve error in jury charge by objection or request for instruction);
Jenkins v. State, 468 S.W.3d 656, 671 & n.9 (Tex. App.—Houston [14th Dist.] 2015,
pet. dism’d). If the defendant timely preserved error, then reversal is required if
there was some harm to the defendant. Marshall, 479 S.W.3d at 843. If the
defendant failed to preserve error in the trial court, then reversal is required only if
the error was so egregious and created such harm that the defendant did not have a
fair and impartial trial. Id.

       The Fourth Amendment to the United States Constitution secures “[t]he right
of the people to be secure in their persons . . . against unreasonable searches and
seizures.” U.S. Const. amend. IV. Drawing a blood specimen is a search and seizure
under the Fourth Amendment. See Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim.
App. 2016); Hovis v. State, 513 S.W.3d 649, 651 (Tex. App.—Houston [14th Dist.]
2016, no pet.). Searches conducted without a warrant are per se unreasonable under

                                           5
the Fourth Amendment, unless they are subject to an exception. Gonzales v. State,
369 S.W.3d 851, 854 (Tex. Crim. App. 2012). Voluntary consent is an exception to
the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.
2003); see also Donjuan v. State, 461 S.W.3d 611, 616 (Tex. App.—Houston [14th
Dist.] 2015, no pet.) (“A warrantless search authorized by consent is wholly valid.”).

       “No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the Constitution or
laws of the United States of America, shall be admitted in evidence against the
accused on the trial of any criminal case.” Tex. Code Crim. Proc. art. 38.23(a).
Under article 38.23, entitled “Evidence not to be used,” “[i]n any case where the
legal evidence raises an issue hereunder, the jury shall be instructed that if it believes,
or has a reasonable doubt, that the evidence was obtained in violation of the
provisions of this Article, then and in such event, the jury shall disregard any such
evidence so obtained.” Id. A defendant is entitled to a jury instruction under article
38.23 if: (1) the evidence heard by the jury raises an issue of fact, (2) the defendant
affirmatively contests the evidence on that fact, and (3) the contested factual issue is
material to the lawfulness of the challenged conduct. See Hamal v. State, 390
S.W.3d 302, 306 (Tex. Crim. App. 2012).

       A defendant’s right to an article 38.23 instruction is not invoked unless
affirmative evidence puts the existence of the challenged fact in question. See
Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App. 2007). A cross-examiner’s
questions do not create a conflict in the evidence, although the witness’s answers to
those questions might. Id. Further, the jury’s right to disbelieve a witness’s
testimony in whole or part does not create a factual dispute as to article 38.23. See
Cadoree v. State, 331 S.W.3d 514, 521 (Tex. App.—Houston [14th Dist.] 2011, pet.



                                            6
ref’d). When the evidence does not raise a fact issue, the trial court should not charge
the jury under article 38.23(a). Madden, 242 S.W.2d at 510, 518.

      2. Application

      Undisputedly, the State did not have a warrant for the blood draw. The State
maintains, however, that it lawfully obtained the blood sample because appellant
voluntarily consented to the warrantless blood draw. Appellant argues that the
evidence raised a fact issue regarding consent, and that the court should have
instructed the jury under article 38.23 to resolve that issue before the jury could
consider the blood-test results in its deliberations. We turn to a review of the
evidence.

      At trial, the State introduced a (silent) video recording purportedly showing
Deputy O’Bryant reading appellant his DIC-24 statutory warnings in the DWI room.
These warnings provide, among other things, some of the potential consequences of
refusing or submitting to a breath or blood test. See Freeman v. State, 413 S.W.3d
198, 203 n.1 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (citing Tex. Transp.
Code § 724.015). At various points, the video shows appellant swaying, shrugging,
nodding, and shaking his head. Toward the end of the video, the recording shows
appellant shaking his head back and forth. This head-shake, appellant argues,
indicates that appellant was refusing to provide a consensual blood sample.

      Deputy O’Bryant testified that appellant verbally consented to a blood draw
while in the DWI room. At trial, as he watched the video of appellant in the DWI
room, Deputy O’Bryant narrated, “he’s speaking and his shoulders are shrugging[,]
saying I don’t care, just get the blood.” According to Deputy O’Bryant, appellant
was “speaking also as he’s shaking his head.” Because no sound accompanies the
video, the record does not reveal the precise words uttered in the DWI room.


                                           7
       Appellant posits that Deputy O’Bryant’s testimony and the DWI room video
raise a fact question as to appellant’s consent to the blood draw, therefore warranting
an article 38.23 instruction in the jury charge.

       We disagree. Deputy O’Bryant testified that appellant said, “I don’t care, just
get the blood,” while appellant was shrugging his shoulders and shaking his head.
The video shows appellant shrugging his shoulders, shaking his head, and speaking.
Given the absence of a sound recording, however, the video does not refute Deputy
O’Bryant’s testimony explaining to the jury his questions or appellant’s answers.4
Accordingly, no conflict exists between Deputy O’Bryant’s testimony and the video
insofar as appellant’s consent is concerned. See Holmes v. State, 248 S.W.3d 194,
199 (Tex. Crim. App. 2008) (“[T]here is nothing to instruct the jury about unless
there is affirmative evidence that raises a contested fact issue.”); Madden, 242
S.W.3d at 510 (standard is whether evidence on a material fact issue was
“affirmatively contested”). Appellant limits his focus to evidence stemming only
from the DWI room, but there is other evidence in the record relevant to the question
of appellant’s consent.

       State’s Exhibit 4 is another video recording, which depicts, with sound, the
nurse drawing appellant’s blood at HPD’s intoxication facility. In the video, the
nurse asked appellant to confirm that he is consenting to a blood draw, and if he is,
to sign a form that the nurse gives appellant. Appellant signed the form. The signed




       4
         Not only is it unclear from the video to what (if anything) appellant is shaking his head
in response, but it is unclear that appellant is shaking his head in an attempt to indicate a negative
response. As the trial court noted, “I see movements. . . . That does not constitute, to me from
what I can see, anything other than just somebody moving around.” The court went on to state for
the record, “Let me be clear about this fact issue. . . . I don’t know what y’all are talking about,
about this head nodding, shaking, whatever. I don’t see that there.”

                                                  8
consent form was admitted as evidence, and it stated, “Let my signature state I have
given consent for these blood samples to be drawn.”

      Because no affirmative evidence contradicts Deputy O’Bryant’s testimony,
no fact question exists regarding appellant’s consent and the issue should not have
been submitted to the jury. See Cadoree, 331 S.W.3d at 523. This conclusion is
buttressed by the signed consent form memorializing appellant’s prior consent given
to Deputy O’Bryant. We conclude that the trial court did not err in refusing
appellant’s requested article 38.23 instruction in the jury charge. See Madden, 242
S.W.3d at 510, 518; Hovis, 513 S.W.3d at 652.

      Having found no error, we need not engage in a harm analysis. See Sakil v.
State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009).

      We overrule appellant’s first issue.

B.    Brady Claim

      In his second issue, appellant argues that his rights under the Sixth and
Fourteenth Amendments to the United States Constitution and under article I,
sections 13 and 19 of the Texas Constitution were violated by the State’s failure to
disclose purported Brady material5 until after trial.

      1. Relevant law

      The State has an affirmative duty to turn over exculpatory or impeachment
evidence favorable to the defendant that is material either to guilt or to punishment.
Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150,
153-54 (1972); Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). An
accused is entitled to a new trial due to a Brady violation if the accused shows that


      5
          Brady v. Maryland, 373 U.S. 83, 87 (1963).

                                               9
(1) the prosecutor failed to disclose evidence, (2) the evidence is favorable to the
accused, and (3) the evidence is material (i.e., the evidence creates a probability
sufficient to undermine confidence in the outcome of the proceeding). See Hampton
v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). Generally, to preserve a Brady
complaint for appellate review, the record must show that an appellant timely and
specifically objected to the Brady violation and obtained a ruling (or a refusal to
rule) on the objection from the trial court. See Pena v. State, 353 S.W.3d 797, 807,
809 (Tex. Crim. App. 2011); Tex. R. App. P. 33.1(a). A defendant can preserve a
Brady complaint as to information disclosed for the first time after trial in a motion
for new trial. See Pena, 353 S.W.3d at 807-09.

      2. Relevant facts

      At trial, the State called Dr. Fessessework Guale to testify as an expert. Dr.
Guale testified that she has a master’s degree in toxicology, that she is board certified
in toxicology, and that she is the toxicology operations manager at the Harris County
Institute of Forensic Sciences. Dr. Guale’s testimony primarily concerned the
toxicology results of appellant’s blood draw, which indicated that appellant’s blood-
alcohol content was above the legal limit.

      After the trial court accepted the verdict, the district attorney filed a Brady
disclosure, which advised that Dr. Guale had incorrectly testified regarding her
educational background. Dr. Guale has a master’s degree in physiological sciences
“with coursework and research in toxicology,” not a master’s degree in toxicology,
as she testified. The State filed and served its Brady disclosure within the deadline
for appellant to raise any objection in a timely motion for new trial. Even though
appellant already had filed a motion for new trial before the State’s Brady disclosure,
the disclosure’s timing would have allowed for appellant to timely file an amended



                                           10
motion for new trial asserting a Brady complaint. Appellant did not file an amended
motion for new trial.

       3. Analysis

       On appeal, appellant contends that “[t]he false testimony was critical in
evaluating [Dr. Guale’s] credibility . . . [and] [t]he jury’s estimate of the truthfulness
and reliability of Dr. Guale may well have been determinative of Appellant’s guilt
or innocence.” The State responds that appellant waived his Brady complaint on
appeal by failing to timely raise the issue in the trial court. We agree with the State
that appellant waived his Brady complaint.

       Here, the trial court entered a judgment of conviction by jury on August 16,
2016. Appellant filed a motion for new trial on September 7, 2016, raising a single
argument of ineffective assistance of counsel. The State filed its Brady notice on
September 13, 2016. Appellant had until September 15, 2016 to file an amended
motion for new trial. The trial court denied appellant’s motion for new trial by
written order on October 27, 2016. The record does not indicate that appellant filed
a second or amended motion for new trial raising the Brady issue before the
applicable deadline, nor does the record reflect that appellant otherwise raised the
Brady issue at any time while the trial court possessed plenary jurisdiction. See
Pena, 353 S.W.3d at 807-09 (holding defendant preserves Brady error by raising
issue in motion for new trial if nondisclosure is not discovered until after jury retires
to deliberate); accord also Clarke v. State, 270 S.W.3d 573, 577-81 (Tex. Crim. App.
2008) (holding that appellant preserved Brady error by raising argument during new-
trial hearing). In sum, there is nothing in the record showing that appellant alerted
the trial court to the alleged error.

       By failing to raise the issue to the trial court, appellant waived the issue on
appeal. See Jackson v. State, 495 S.W.3d 398, 420 (Tex. App.—Houston [14th
                                           11
Dist.] 2016, pet. ref’d) (holding appellant failed to raise Brady claim in court below
and thus failed to preserve error for appellate review).

      We overrule appellant’s second issue.

                                     Conclusion

      Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                        /s/    Kevin Jewell
                                               Justice



Panel consists of Chief Justice Frost and Justices Boyce and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).




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