Opinion issued May 2, 2017




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-15-00977-CR
                            ———————————
                    ERIK CATORCE MADRID, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


           On Appeal from the County Criminal Court at Law No. 4
                            Harris County, Texas
                        Trial Court Case No. 1970160


                          MEMORANDUM OPINION

      Erik Catorce Madrid was charged and found guilty of driving while

intoxicated with a breath alcohol concentration above 0.15. The trial court sentenced

him to one year in county jail, probated for 18 months. In seven issues, Madrid

contends that the trial court’s judgment should be reversed because the trial court
erred by (1) denying a challenge for cause, (2) denying his motions to suppress his

arrest and breath test results, (3) admitting results of the horizontal gaze nystagmus

test, (4) denying his requests for an article 38.23 instruction and a spoliation

instruction in the jury charge, and (5) submitting as a special issue the question of

whether his alcohol concentration exceeded 0.15. We affirm.

                                    Background

      At trial, Officer R. Carter of the Houston Police Department (“HPD”) testified

that he encountered Madrid driving his truck on the highway while en route to HPD’s

central intoxication facility (“central intox”) with another person Carter had just

arrested for driving while intoxicated. Carter followed Madrid’s truck in the

highway’s left lane and pulled Madrid over after pacing him and determining he was

speeding. Carter also observed Madrid tailgating other drivers, forcing them to

move out of the left lane.

      When Carter approached Madrid’s truck, he noticed a strong odor of alcohol

and saw that Madrid’s eyes were red and glassy. Carter asked Madrid whether he

had been drinking, and Madrid admitted to drinking five or six beers between

6:00 p.m. and midnight. Carter asked Madrid to step out of the truck and performed

a horizontal gaze nystagmus (HGN) test. Madrid exhibited six of the six possible

clues, indicating intoxication, so Carter arrested him for driving while intoxicated.




                                          2
Madrid’s driving and the traffic stop were recorded on Carter’s dashboard camera,

and the dash-cam video was admitted into evidence and played for the jury.

      While Carter testified, Madrid moved to suppress his arrest on the grounds

that Carter did not have reasonable suspicion to stop him or probable cause to arrest

him for driving while intoxicated.1 With respect to probable cause, Madrid argued

that speeding is not an arrestable offense, admission of drinking alone does not

support a conclusion that a person is intoxicated, and Carter performed the HGN test

incorrectly because “there was flashing lights.” The State responded that Carter had

probable cause because he smelled alcohol on Madrid’s breath and observed his red,

glassy eyes, Madrid admitted to drinking five to six beers, and Madrid exhibited six

of the six possible clues during the HGN test, indicating intoxication. The trial court

denied the motion.

      Later in the trial, defense counsel cross-examined Carter about the manner in

which he conducted the HGN test. Carter conducted the test with Madrid facing the

side of the road and standing between Carter’s patrol car and Madrid’s truck, which

had its hazard lights flashing. Carter denied that this violated the National Highway

Traffic Safety Administration’s guidelines regarding how to conduct an HGN test,

and he testified that, at most, it would be a slight variation that would not invalidate


1
      On appeal, Madrid attacks only whether Carter had probable cause to arrest him.
      Our background discussion therefore focuses on Madrid’s probable-cause
      argument.
                                           3
the test. Madrid did not reurge his motion to suppress his arrest after this testimony

was adduced.

      Carter testified that, after the arrest, he brought Madrid to central intox for

further tests. Carter put Madrid in a holding cell and conducted a breath test on the

first person he had arrested. The last of those tests ended at 2:01 a.m. according to

the Intoxilyzer. Carter then retrieved Madrid and brought him to the intox room.

      Carter could not recall how long they were in the intox room before a

technician turned on a video recording device. The video was played for the jury

and shows a recording of the statutory warnings for breath sample requests being

played for Madrid while he reads a copy of the warnings, Carter requesting a breath

sample from Madrid, and Madrid consenting to the breath test. After Carter testified,

Madrid moved to suppress the breath test results, arguing that if Carter observed the

15-minute observation period required by section 19.3(a)(1) of the Texas

Administrative Code after the 10 1/2 minute intox room video ended, it would have

been impossible for Carter to conduct a 15-minute observation in the 25-minute

period between the end of the other person’s breath test at 2:01 and the beginning of

Madrid’s breath test at 2:26 a.m. The trial court denied the motion.

      Carly Bishop, a technical supervisor with the Texas Department of Public

Safety Breath Alcohol Testing Program testified about Madrid’s breath test results.




                                          4
They showed that Madrid’s breath contained 0.155 and 0.151 grams of alcohol per

210 liters of breath.

      The jury found Madrid guilty, and the trial court sentenced him to one year in

county jail, probated for 18 months. Madrid appeals.

                                Challenge for Cause

      In his first issue, Madrid argues that the trial court erred by denying his

challenge for cause to venire member number 14. Madrid argues that number 14

expressed incurable bias in favor of police officers during voir dire.

A.    Standard of Review and Applicable Law

      A prospective juror is subject to challenge for bias under the Code of Criminal

Procedure, but that challenge may be waived. See TEX. CODE CRIM. PROC. art. 35.16,

§§ 9, 11. Further, while the United States and Texas Constitutions provide a

constitutional right to an impartial jury, that right may also be waived. See State v.

Morales, 253 S.W.3d 686, 697 (Tex. Crim. App. 2008) (holding that the Sixth

Amendment right to an impartial jury may be waived); Jones v. State, 982 S.W.2d

386, 391 (Tex. Crim. App. 1998) (holding that the Texas constitutional right to an

impartial jury affords no greater protection than that provided by the Sixth

Amendment).

      To preserve error with respect to a trial court’s denial of a challenge for cause,

an appellant must: (1) assert a clear and specific challenge for cause; (2) use a


                                           5
peremptory strike on the complained-of venire member; (3) exhaust his peremptory

strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror;

and (6) claim that he would have struck the objectionable juror with a peremptory

strike if he had one to use. Allen v. State, 108 S.W.3d 281, 282 (Tex. Crim. App.

2003).

      We review a trial court’s decision to deny a challenge for cause by looking at

the entire record to determine whether sufficient evidence supports the ruling. Davis

v. State, 329 S.W.3d. 798, 807 (Tex. Crim. App. 2010) (citing Feldman v. State, 71

S.W.3d. 738, 744 (Tex. Crim. App. 2002)). “The test is whether a bias or prejudice

would substantially impair the venire member’s ability to carry out the juror’s oath

and judicial instructions in accordance with the law.” Id. (citing Gardner v. State,

306 S.W.3d. 274, 295 (Tex. Crim. App. 2009)). In applying this test, we must afford

considerable deference to the trial court’s ruling because the trial judge is in the best

position to evaluate a panel member’s demeanor and responses. Id. A trial court’s

ruling on a challenge for cause may be reversed only for a clear abuse of discretion.

Id. (citing Gardner, 306 S.W.3d. at 296). “When a venire member’s answers are

vacillating, unclear, or contradictory, we accord particular deference to the trial

court’s decision.” Id. (citing Gardner, 306 S.W.3d. at 296).

      A panelist is challengeable “if he cannot impartially judge the credibility of

witnesses,” but “this means only that jurors must be open-minded and persuadable,


                                           6
with no extreme or absolute positions regarding the credibility of any witness.” Ladd

v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999).               Because “‘complete

impartiality cannot be realized as long as human beings are called upon to be

jurors,’” panelists “are not challengeable for cause simply because they would give

certain classes of witnesses a slight edge in terms of credibility.” Id. (quoting Jones

v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998). “The test is whether a bias

or prejudice would substantially impair the venire member’s ability to carry out the

juror’s oath and judicial instructions in accordance with the law.” Davis, 329

S.W.3d at 807. “Before venire members may be excused for cause, the law must be

explained to them, and they must be asked whether they can follow that law,

regardless of their personal views.” Id. The party seeking to have the panelist struck

does not meet his burden of establishing that the challenge is proper “until he has

shown that the venire member understood the requirements of the law and could not

overcome his or her prejudice well enough to follow the law.” Id. (burden of

establishing that a challenge is proper rests with its proponent); see Castillo v. State,

913 S.W.2d. 529, 534 (Tex. Crim. App. 1995) (citing Hernandez v. State, 757

S.W.2d. 744, 753 (Tex. Crim. App. 1988)).

B.    Analysis

      Madrid challenged venire member number 14 for cause, and the trial court

denied the challenge. Madrid then exercised a peremptory challenge on venire


                                           7
member number 14, exhausted all of his peremptory challenges, requested and was

denied additional peremptory challenges, and identified venire member number 7,

who was seated on the jury, as an objectionable juror who he otherwise would have

struck had he not had to use a peremptory challenge on number 14.

      During voir dire, Madrid asked the venire members whether they were going

to give a witness who was a police officer more credibility or a “head start” simply

because the witness was a police officer. Number 14 responded, “Yes.” Number 14

was later called up to the bench to clarify his answer:

      Defense counsel: When I asked the question about—I explained that all
      witnesses are to start off even before you heard the testimony. I asked
      if you would give a police officer or give a witness who is a police
      officer a head start, basically more credibility before you’ve heard the
      testimony.

      Number 14: You asked me to be honest. I have family members that
      are law enforcement. So I hold them in high regard. So just naturally
      I view them as someone say a little bit more authority than just someone
      I don’t know. That’s the only thing I meant.

      Defense counsel: There is nothing wrong with that. I just wanted to
      clarify because our law said that they have to start even, and if you’re
      going to give a police officer a head start, basically more credibility,
      before you’ve heard the testimony. Once you hear it, of course, you can
      believe it, but before you’ve heard it.
      Number 14: I’d give a head start and credibility, two different words.

      Defense counsel: Well, if you’re going to give them more credibility
      before you’ve heard the testimony simply because they are a police
      officer, that’s what we want to know.
      The Court: All right. State wanted a challenge?


                                          8
      Prosecutor: And it’s okay to hold them to a higher regard. It’s okay to
      do that, but in this case, according to the law, you’re not supposed to
      judge whether or not you believe a person who testifies irregardless if
      they’re a police officer, a defendant, whoever until they take the stand
      and give their testimony. Once you hear the testimony, then you can
      judge whether or not you believe that testimony or whether you don’t
      believe it. We’re asking if you can wait and hold your judgment until
      you hear the evidence presented in the case, or are you going to
      automatically?

      Number 14: Would I be able to uphold the oath of a true verdict,
      absolutely. Would I also view a police officer in higher regard,
      absolutely. I do think those used exclusively.

      The Court: You do think.
      Number 14: I do think they are used exclusively.
      The Court: Absolutely. Have a seat. Denied, if that was your motion.

      Defense counsel: Well, Your Honor, the defense then with [sic] ask for
      additional peremptory because he did say he was going to give them
      more credibility before he heard the testimony, and therefore would ask
      for an additional peremptory because we are going to have to use
      peremptory challenge.
      The Court: He we was very clear. I’m not going to argue. Your request
      is denied.

      Defense counsel: Yes, Your honor.

      Although number 14 initially responded, “Yes,” to defense counsel’s question

about police credibility, at the bench, number 14 clarified that he holds police

officers in “high regard” but unequivocally stated, after the law regarding witness

credibility was explained, that he could “absolutely” uphold the oath of a true

verdict. The trial court was in a position to evaluate number 14’s responses and was

entitled to believe that he could follow the law. See Feldman v. State, 71 S.W.3d
                                         9
738, 747 (Tex. Crim. App. 2002) (where venire member initially stated would

answer special issue a particular way, but after further questioning, said that he could

follow the law, trial court did not abuse discretion in denying challenge for cause);

see also Davis, 329 S.W.3d at 807 (to the extent venire member’s answers are

“vacillating, unclear, or contradictory, we accord particular deference to the trial

court's decision”). Accordingly, we hold that the trial court did not abuse its

discretion in denying Madrid’s challenge for cause.       See Feldman, 71 S.W.3d at

747; Ladd, 3 S.W.3d at 559; see also Davis, 329 S.W.3d at 807.

      We overrule Madrid’s first issue.

                                Motions to Suppress

      In his second issue, Madrid argues that the trial court erred by denying his

motion to suppress his arrest because Carter lacked probable cause to believe Madrid

was intoxicated. In his fourth issue, Madrid argues that the trial court erred by

denying his motion to suppress the breath test results because Carter failed to

continuously monitor Madrid for 15 minutes before conducting the test as required

by section 19.3(a)(1) of the Texas Administrative Code.

A.    Standard of Review

      In reviewing a trial court’s ruling on a motion to suppress evidence, we apply

a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.

Crim. App. 2000); Wiley v. State, 388 S.W.3d 807, 815 (Tex. App.—Houston [1st


                                          10
Dist.] 2012, pet. ref’d).   We give almost total deference to the trial court’s

determination of historical facts that depend on credibility, and we conduct a de novo

review of the trial court’s application of the law to those facts. Carmouche, 10

S.W.3d at 327.

      When a trial court does not make explicit findings of historical fact, we review

the evidence in the light most favorable to the trial court’s ruling. Id. at 327–28.

That is, “we will assume that the trial court made implicit findings of fact supported

in the record that buttress its conclusion.” Id. at 328. When reviewing a ruling on a

motion to suppress, we defer to the trial court’s resolution of contradictory evidence

and determinations regarding witness credibility. See Gutierrez v. State, 221 S.W.3d

680, 687 (Tex. Crim. App. 2007). The trial court 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). The trial court may

choose to believe or disbelieve any part or all of a witness's testimony. Green v.

State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996).

B.    Arrest

      In his second issue, Madrid argues that the trial court erred by denying his

motion to suppress his arrest because Carter lacked probable cause to believe Madrid

was intoxicated.




                                         11
      1.     Applicable Law

      The Fourth Amendment to the United States Constitution guarantees that

“[t]he right of the people to be secure in their persons . . . against unreasonable . . .

seizures, shall not be violated.” U.S. CONST. amend. IV; Amador v. State, 275

S.W.3d 872, 878 (Tex. Crim. App. 2009).            Under the Fourth Amendment, a

warrantless arrest for an offense committed in the officer’s presence is reasonable if

the officer has probable cause. Amador, 275 S.W.3d at 878. Probable cause for a

warrantless arrest exists if, at the moment the arrest is made, the facts and

circumstances within the arresting officer’s knowledge and of which he has

reasonably trustworthy information are sufficient to warrant a prudent man in

believing that the person arrested had committed or was committing an offense. Id.

A finding of probable cause requires “more than bare suspicion” but less than would

justify conviction. Id. The test for probable cause is objective, “unrelated to the

subjective beliefs of the arresting officer,” and “it requires a consideration of the

totality of the circumstances facing the arresting officer.” Id.

      An officer may lawfully stop and detain a person for a traffic violation.

Chapnick v. State, 25 S.W.3d 875, 877 (Tex. App.—Houston [14th Dist.] 2000, pet.

ref’d). An officer may not then arrest the defendant for driving while intoxicated

unless the officer observes additional facts constituting probable cause. See id.




                                           12
      2.     Analysis

      Madrid argues that the trial court erred by denying his motion to suppress his

arrest because the evidence is insufficient to support a finding of probable cause.2

Specifically, Madrid argues that:

       Carter’s testimony that he was speeding and driving aggressively
        was not credible and was contradicted by the dash-cam video;

       Odor of alcohol and admission of alcohol use, alone, do not establish
        intoxication;

       He was not stumbling or slurring his words, did not have problems
        walking, standing, or talking, and was able to comply with all of
        Carter’s directions; and

       Carter improperly administered the HGN test.

The State argues that the trial court could have credited Carter’s testimony regarding

Madrid’s behavior and the results of the HGN test to find that Carter had probable

cause to arrest Madrid for driving while intoxicated.

      We conclude that the trial court did not err by denying Madrid’s motion to

suppress his arrest. Carter testified that he observed Madrid speeding and tailgating,

and the trial court was able to observe whether Madrid’s driving was as Carter

described in the dash cam video. Carter also testified that when he approached

Madrid’s car, Madrid smelled of alcohol and his eyes were red and glassy. Madrid



2
      Madrid does not contend on appeal that Carter lacked reasonable suspicion to make
      the initial traffic stop and only challenges whether Carter had probable cause to
      subsequently arrest him.
                                          13
admitted to drinking five or six beers, the last around midnight, which was less than

an hour before Carter stopped him.        Carter further testified that he properly

administered the HGN test and the results indicated intoxication. This evidence

supports the trial court’s conclusion that Carter had probable cause to arrest Madrid.

      Madrid argues that Carter’s testimony about Madrid’s speeding and reckless

driving was not credible and is not supported by the dash cam video, and that the

evidence that Madrid was able to talk, stand, walk, and follow Carter’s directions

without issue conflict with Carter’s testimony. However, we must defer to the trial

court’s resolution of conflicts in the evidence and credibility determinations. See

Gutierrez, 221 S.W.3d at 687; St. George, 237 S.W.3d at 725; Green, 934 S.W.2d

at 99. Accordingly, this is a not a basis for concluding that the trial court’s implied

finding of probable cause was unsupported.

      Madrid also argues that odor of alcohol and admission of alcohol use, alone,

do not support a conclusion that a person is intoxicated. But this is not the only

evidence on which the trial court could have relied to conclude that Carter had

probable cause to believe Madrid was intoxicated.

      Finally, Madrid contends that Carter improperly administered the HGN test,

and therefore the trial court could not rely upon its result in making the probable-

cause determination. Madrid argues that the test was improperly performed because

it was administered near Madrid’s flashing hazard lights. However, all of the


                                          14
evidence that Madrid relies upon to support this argument was adduced after Madrid

raised his motion to suppress his arrest and the trial court denied it. See Weatherred

v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (holding appellate court

reviews trial court’s ruling on admissibility of evidence “in light of what was before

the trial court at the time the ruling was made”); Gutierrez, 221 S.W.3d at 687

(appellate court considers additional trial evidence only if motion to suppress is

relitigated at trial). Madrid did not ask the trial court to reconsider its ruling on the

motion to suppress based upon the evidence upon which he now relies on appeal.

See Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App. 2012) (ruling on motion

to suppress is interlocutory, and trial court may reconsider its ruling at any time

before end of trial). 3

       Viewing the evidence in the light most favorable to the trial court’s ruling and

deferring to the trial court’s resolution of contradictory evidence and determinations

regarding witness credibility, we hold that the trial court did not abuse its discretion



3
       In his third issue, Madrid separately argues that the trial court erred by admitting
       evidence of the HGN test results. However, at trial, Madrid argued only that the
       HGN test results did not support the probable-cause finding, and did not object to
       the admission of the HGN test results themselves. Because Madrid did not object
       and obtain a ruling on the admission of the HGN test results, he has not preserved
       this issue for our review. See TEX. R. APP. P. 33.1(a) (to preserve the issue of
       erroneously admitted evidence, a party must make a timely and specific objection
       and obtain a ruling from the trial court); Martinez v. State, 98 S.W.3d 189, 193 (Tex.
       Crim. App. 2003) (appellate court may not determine whether a trial court erred by
       admitting evidence unless error is preserved for review). We therefore overrule
       Madrid’s third issue.
                                             15
in denying Madrid’s motion to suppress his arrest. See Carmouche, 10 S.W.3d at

327.

       We overrule Madrid’s second issue.

C.     Breath Test Results

       In his fourth issue, Madrid argues that the trial court erred by denying his

motion to suppress the breath test results because the evidence established that Carter

failed to observe Madrid for 15 minutes before conducting the breath test as required

by section 19.3(a)(1) of the Texas Administrative Code.

       1.     Applicable Law

       “A breath specimen taken at the request or order of a peace officer must be

taken and analyzed under the rules of the department [of public safety] . . . .” TEX.

TRANSP. CODE § 724.016(a). The rules for breath-alcohol-testing procedures are set

forth in the Texas Administrative Code. See 37 TEX. ADMIN. CODE § 19.3. A

presumption of admissibility applies when the procedures prescribed by the

Department of Public Safety are followed. See Reynolds v. State, 204 S.W.3d 386,

389 (Tex. Crim. App. 2006); Serrano v. State, 464 S.W.3d 1, 5 (Tex. App.—Houston

[1st Dist.] 2015, pet. ref’d).

       Here, Madrid contends that the State did not comply with one such rule, which

imposes a 15-minute waiting and observation period before a breath alcohol test.

The rule requires:


                                          16
      (1) An operator shall remain in the continuous presence of the subject
      at least 15 minutes immediately before the test and should exercise
      reasonable care to ensure that the subject does not place any substances
      in the mouth. Direct observation is not necessary to ensure the accuracy
      of the test result . . . .
37 TEX. ADMIN. CODE § 19.3(a)(1).

      2.     Analysis

      Madrid argues that the trial court erred by overruling his motion to suppress

the breath test results because Carter’s testimony about his 15-minute observation of

Madrid was inconsistent and therefore not credible. Specifically, Madrid contends

that Carter’s testimony conflicted in three respects:

       Whether Carter started the observation period before Madrid
        entered the intox room or after Madrid consented to the breath
        test;

       Whether the video recording was started when Carter and
        Madrid first entered the room or after they had been in the
        room some time; and

       The reason Carter had the technician turn off the video before
        the 15 minutes had elapsed.

Madrid also argues that Carter’s testimony was not credible because he testified that

he used a timer on his watch to monitor the 15-minute period, but the intox room

video shows he is not wearing a watch. The State responds that Carter unequivocally




                                          17
and repeatedly testified that he observed Madrid for the required 15 minutes, and

therefore the trial court did not err in denying the motion.4

      At trial, Carter was asked what happened after Madrid consented to the breath

test, and he responded, “Before every breath test you have to do a 15-minute

observation period.” Carter testified that he timed the statutorily-required 15-minute

period that must be observed before he administered a breath test to Madrid. On

cross-examination, defense counsel questioned why Carter did not record the entire

15-minute period. Carter testified that there are only two intox rooms at central

intox, it was a busy weekend, and it is uncommon to tape the entire 15-minute period

because others need to use the video recorder to record sobriety tests. Carter was

also questioned about when he started timing the 15-minute period:

      Defense counsel: So, did you look at your watch?

      Carter: Yeah, I got a timer. The same watch I used that night. I had
      my timer to 15 minutes.


4
      The State also argues that Madrid did not preserve his complaint that the breath test
      results should not be admitted because defense counsel stated “no objection” when
      the breath test results were offered. However, the record reflects that when the State
      was publishing the results to the jury, defense counsel clarified that she made no
      objection subject to the trial court’s previous denial of the motion to suppress the
      breath test results, and the trial court acknowledged that the breath test results were
      being admitted subject to the denial of Madrid’s motion to suppress them. See
      Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013) (rule that later
      statement of “no objection” will forfeit earlier-preserved claim of error in denial of
      motion to suppress is context-dependent; if record as a whole plainly demonstrates
      that defendant did not intend, and trial court did not construe, his “no objection”
      statement to constitute abandonment of earlier-preserved claim of error, then
      appellate court should not regard claim as waived but should resolve it on merits).
                                            18
      Defense counsel: So you hit your timer when y’all came into the room?

      Carter: I’m not quite sure when I hit it, but I know I did the 15.

Later, Carter testified that he started the timer before they went into the intox room:

      Defense counsel: And you don’t know what time your 15-minute
      observation period started?

      Carter: Before we went in the room.
      According to the reading from Madrid’s breath test, his test began at 2:26 a.m.,

25 minutes after Carter completed the breath test on his first arrestee. Madrid moved

to suppress the breath test results, arguing that if Carter observed the 15-minute

observation period required by section 19.3(a)(1) of the Texas Administrative Code

after the 10 1/2 minute intox room video ended, it would have been impossible for

Carter to conduct a 15-minute observation in the 25-minute period between the end

of the other person’s breath test at 2:01 and the beginning of Madrid’s breath test at

2:26 a.m. The State responded that Carter testified that he started timing the 15-

minute period before he and Madrid entered the intox room, and that there was

“plenty of time” in the 25-minute period between the first person’s breath test and

Madrid’s breath test, less the 10 1/2 recorded minutes, to allow for the additional 4

1/2 minutes of the 15-minute observation period that were not captured on video.

      We conclude that the trial court did not err in denying Madrid’s motion to

suppress the breath test results. Carter unequivocally testified that he knew he

complied with the 15-minute observation period because he timed it. Madrid’s


                                          19
arguments on appeal about alleged internal inconsistencies in Carter’s testimony

pertain to the timeline regarding when the 15-minute period began and ended and

why Carter did not record the entire 15-minute period. To the extent that Carter’s

testimony conflicted with respect to these issues, it was the trial court’s province to

resolve these conflicts, and we afford almost total deference to the trial court’s

resolution of such conflicts. See Gutierrez, 221 S.W.3d at 687; see also Walker v.

State, 588 S.W.2d 920, 924 (Tex. Crim. App. 1979) (trial court determines whether

officer’s or appellant’s version of events is true). To the extent that Madrid is

arguing that Carter’s inconsistent testimony raises questions about his credibility,

the trial court is the “sole trier of fact and judge of credibility of the witnesses and

the weight to be given to their testimony,” see St. George, 237 S.W.3d at 725, it

could choose to believe or disbelieve any part of Carter’s testimony, see Green, 934

S.W.2d at 98, and we are required to defer to this resolution. See Gutierrez, 221

S.W.3d at 687.

      Madrid’s claim that the trial court should not credit Carter because he falsely

claimed to have been wearing a watch was not raised in the trial court. We may not

reverse the trial court’s ruling on the motion to suppress based on an argument that

the trial court did not have an opportunity to consider. Hailey v. State, 87 S.W.3d

118, 121–22 (Tex. Crim. App. 2002); see TEX. R. APP. P. 33.1(a) (to preserve issue

for appellate review, party must present to trial court a timely request, objection, or


                                          20
motion stating with sufficient specificity the ground for the ruling desired); Douds

v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015) (timely, specific objection is

required so opposing counsel has an opportunity to respond and trial judge is

informed of basis of objection and has opportunity to rule). Because Madrid did not

raise this argument in the trial court, he did not preserve this argument for appeal.

       Giving the required deference to the trial court’s resolution of any conflicting

evidence and determinations regarding Carter’s credibility in light of the arguments

Madrid preserved for appeal, we conclude that the trial court could have credited

Carter’s testimony that he observed the mandatory 15-minute observation period.

See, e.g., Serrano, 464 S.W.3d at 8 (holding trial court did not abuse its discretion

in denying motion to suppress where breath test operator testified that she knew she

performed mandatory 15–minute waiting period). Accordingly, we hold that the

trial court did not abuse its discretion by denying Madrid’s motion to suppress the

breath test results.

       We overrule Madrid’s fourth issue.

                                     Jury Charge

       In his fifth issue, Madrid contends that the trial court erred by failing to submit

an article 38.23 instruction because the evidence raised a fact issue about whether

Carter properly conducted the 15-minute observation period required by Texas

Administrative Code section 19.3(a)(1). In his sixth issue, Madrid argues that the


                                           21
trial court erred by denying his request for a spoliation instruction because the video

recorder in the intox room was shut off before he started his breath test, contrary to

HPD’s General Order for DWI Investigations. In his seventh issue, Madrid argues

that the trial court erred by submitting a special issue regarding whether his breath

alcohol concentration exceeded 0.15 instead of including it in the application

paragraph.

A.    Standard of Review

      We review a claim of jury-charge error using the standard set out in Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). First, we determine whether

error exists in the jury charge. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim.

App. 1986). Second, if error exists, we determine whether sufficient harm was

caused by that error to require reversal. Id. Under Almanza, unobjected-to jury

charge error will not result in reversal of a conviction in the absence of “egregious

harm,” which requires the defendant to show that as a result of the error, he “has not

had a fair and impartial trial.” Almanza, 686 S.W.2d at 171. We review a trial

court’s decision not to submit an instruction in the jury charge for an abuse of

discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000).




                                          22
B.    Article 38.23 Instruction

      1.     Applicable Law

      A defendant’s right to the submission of jury instructions under article 38.23

of the Texas Code of Criminal Procedure is “limited to disputed issues of fact that

are material to his claim of a constitutional or statutory violation that would render

evidence inadmissible.” Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim.

App. 2007). Before a defendant is entitled to the submission of a jury instruction

under article 38.23, (1) the evidence heard by the jury must raise an issue of fact,

(2) the evidence on that fact must be affirmatively contested, and (3) the contested

factual issue must be material to the lawfulness of the challenged conduct in

obtaining the evidence. Id. at 510.

       Under the first requirement, there must be a genuine dispute about a material

issue of fact before an article 38.23 instruction is warranted; if there is no disputed

fact issue, the legality of the conduct is determined by the court alone, as a matter of

law. Id. In order for there to be a conflict in the evidence that raises a disputed fact

issue, there must be some affirmative evidence in the record that puts the existence

of that fact in question. Id. at 513. Furthermore, if other facts, not in dispute, are

sufficient to support the lawfulness of the challenged conduct, then the disputed fact

issue is not material to the ultimate admissibility of the evidence and is not to be




                                          23
submitted to the jury. Id. at 511. The disputed fact issue must be essential to

deciding the lawfulness of the challenged conduct. Id.

      2.     Analysis

      Madrid argues that article 38.23’s first requirement is met because the

evidence raised a fact question about whether Carter observed the 15-minute

observation period required by Texas Administrative Code section 19.3(a)(1). In

support, he relies on the same evidence that he relied upon in his appellate argument

regarding his motion to suppress the breath test results. Most of that evidence does

not contradict Carter’s testimony that he knew that he observed Madrid for the

required 15 minutes because he timed it. For the first time on appeal, Madrid also

argues that there is a conflict in the evidence because Carter testified that he used his

watch to time the 15-minute period and the intox room video does not show Carter

wearing a watch. But Madrid did not make this argument in the trial court.

      We conclude that Madrid failed to adduce evidence controverting Carter’s

testimony that he complied with Texas Administrative Code section 19.3(a)(1) and

that Madrid was therefore not entitled to the submission of an article 38.23

instruction. Accordingly, we hold that the trial court did not abuse its discretion in

refusing to submit an article 38.23 jury instruction. See Serrano, 464 S.W.3d at 8

(evidence challenging test operator’s timeline did not contradict operator’s

testimony that they timed 15-minute waiting period); Mbugua v. State, 312 S.W.3d


                                           24
657, 669 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (no error in jury charge

because there was no conflict in evidence raising a disputed fact that would have

mandated a 38.23 jury instruction); Shpikula v. State, 68 S.W.3d 212, 217 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d) (jury’s right to disbelieve officers’

testimony did not create a factual dispute requiring jury instruction under article

38.23).

      We overrule Madrid’s fifth issue.

C.    Spoliation

      Madrid requested that the trial court give the jury the following spoliation

instruction:

             In this case Officer Carter failed to record the entire encounter
      with defendant, Erik Madrid, while in the Central Intox room at 61
      Riesner, including the entire 15-minute observation period, before
      conducting a breath test, in violation of Houston Police Department’s
      policies and procedures.
            If you find that Officer Carter knew or reasonably should have
      known that such portions of the encounter not recorded included
      evidence relevant to the issues in this case and [its] non-preservation
      has not been satisfactorily explained, then you are instructed that you
      may consider such evidence would have been favorable to the
      defendant.

The State argues that the trial court properly denied the request because the

instruction was patterned on a civil spoliation instruction, which is not applicable in

a criminal case. The State further argues that spoliation in a criminal case requires

a finding that the State lost or destroyed evidence in bad faith, which is lacking here.

                                          25
      1.     Applicable Law

      Spoliation concerns the loss or destruction of evidence. Torres v. State, 371

S.W.3d 317, 319 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). In the criminal

context, when spoliation concerns potentially useful evidence, the defendant bears

the burden of establishing that the State lost or destroyed the evidence in bad faith.

See Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010); Castilla v. State,

374 S.W.3d 537, 541 (Tex. App.—San Antonio 2012, pet. ref’d); Torres, 371

S.W.3d at 319.

      2.     Analysis

      We conclude that the trial court did not err by denying Madrid’s request for a

spoliation instruction. Madrid adduced no evidence of bad faith. Carter testified

that he asked the technician to turn off the camera because there are only two rooms

at central intox, it was a busy weekend, and on busy weekends it is common not to

tape the entire 15-minute period because others need to use the video recorder.

Moreover, Madrid’s requested instruction did not properly set out the law on

criminal spoliation, which requires a finding that the State lost or destroyed evidence

in bad faith. See Napper, 322 S.W.3d at 229.

      Madrid claims on appeal that turning off the video violated HPD policy.

Although defense counsel claimed at trial that turning off the recorder was a

violation of the HPD General Order for DWI Investigations, no one testified that


                                          26
turning off the recorder violates the order, the order was not admitted into evidence,

Carter did not agree that turning off the recorder violates the order, and the State

contended that turning off the recorder did not violate the order. In short, there is no

evidence that turning off the recorder was a bad faith violation of HPD policy.

      Accordingly, we hold that the trial court did not abuse its discretion by

denying Madrid’s request for a spoliation instruction. See Notias v. State, 491

S.W.3d 371, 375 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (trial court does not

abuse discretion by failing to submit a requested jury instruction that is not in

accordance with law); see also Napper, 322 S.W.3d at 238 (finding of criminal

spoliation requires evidence of State’s bad faith).

      We overrule Madrid’s sixth issue.

D.    Special Issue

      In his seventh issue, Madrid argues that the trial court erred by submitting a

special issue on whether his breath alcohol concentration was higher than 0.15

instead of merely incorporating the question in the application paragraph of the jury

charge.

      1.     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. TEX. PENAL CODE

§ 49.04(a). A person is intoxicated if he does not have the normal use of mental or


                                          27
physical faculties by reason of the introduction of alcohol or other specified

substances, or has a blood, breath, or urine alcohol concentration of 0.08 or more.

TEX. PENAL CODE § 49.01(2). The offense is a Class B misdemeanor. Id. § 49.04(b).

However, driving while intoxicated is a Class A misdemeanor if the defendant’s

alcohol concentration is found to have been greater than 0.15 at the time the analysis

was performed:

      If it is shown on the trial of an offense under this section that an analysis
      of a specimen of the person’s blood, breath, or urine showed an alcohol
      concentration level of 0.15 or more at the time the analysis was
      performed, the offense is a Class A misdemeanor.
TEX. PENAL CODE § 49.04(d). Whether a defendant’s alcohol concentration was

greater than 0.15 at the time of analysis is an element of the Class A misdemeanor

offense of driving while intoxicated. See Navarro v. State, 469 S.W.3d 687, 696

(Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (defendant’s alleged alcohol

concentration was an element of the charged Class A misdemeanor offense of

driving while intoxicated with an alcohol concentration of 0.15 or more).

      2.     Analysis

      Madrid argues that the trial court erred by submitting a special issue on

whether his breath alcohol concentration was higher than 0.15 instead of merely

incorporating the question in the application paragraph of the jury charge. He argues

that he was harmed because the charge omitted an essential element of the charged

offense. The State contends that the trial court may properly have the jury consider

                                           28
an element of an offense as a special issue where, as here, the State must prove all

of the elements of a lesser degree of offense before proving a higher degree of

offense.

      Madrid was charged by information with the Class A misdemeanor offense of

driving while intoxicated with a breath alcohol concentration of 0.15 or more at the

time of analysis.     The parties agree that whether Madrid’s breath alcohol

concentration was greater than 0.15 was an element of the charged offense in this

case. See Navarro, 469 S.W.3d at 696.

      The charge instructed the jury that a person commits the offense of driving

while intoxicated if the person is intoxicated while operating a motor vehicle in a

public place. The charge then defined “intoxicated” as “not having the normal use

of mental or physical faculties by reason of the introduction of alcohol, or having an

alcohol concentration of 0.08 or more.” The application paragraph stated:

             Therefore, if you believe from the evidence beyond a reasonable
      doubt that in Harris County, Texas, ERIK CATORCE MADRID,
      hereafter styled the Defendant, heretofore on or about June 28, 2014,
      did then and there unlawfully operate a motor vehicle in a public place
      while intoxicated, then you will find the Defendant guilty.

            If you do not so believe, or if you have a reasonable doubt
      thereof, you will find the Defendant not guilty.
The balance of the charge included general instructions. It was accompanied by a

verdict form on which the jury could either find Madrid “‘Not Guilty as charged in



                                         29
the information” or “‘Guilty’ of driving while intoxicated”. At the bottom of the

verdict form was the special issue, which instructed the jury:

                                     Special Issue

           If the jury finds the defendant Guilty of the offense of Driving
      While Intoxicated, it will now consider the following Special Issue.

            Does the jury find beyond a reasonable doubt based upon the
      evidence that at the time of the analysis, and at or near the time of the
      commission of the offense, an analysis of the Defendant’s breath
      showed an alcohol concentration of at least 0.15.

The charge then instructed the jury to answer the issue, “We do,” or “We do not.”

The jury answered, “We do.”

      We conclude that even if the trial court erred by submitting the question of

whether Madrid had a 0.15 breath alcohol concentration as a special issue, Madrid

has not demonstrated any harm from the error. Madrid did not object to this issue at

trial until after the jury began deliberating, and he therefore must demonstrate

egregious harm. See Almanza, 686 S.W.2d at 171. The only harm Madrid identifies

is that all of the essential elements of his offense were not included in the application

paragraph of the charge. However, the jury found all of the essential elements of

Madrid’s charged offense beyond a reasonable doubt by finding him guilty of

driving while intoxicated and answering the special issue in the affirmative. Madrid

does not contend that the evidence was legally or factually insufficient regarding any

element of the offense. Defense counsel did not expressly address the special issue


                                           30
in closing, but she did argue that the jury should find Madrid not guilty because the

breath test results were unreliable. The State argued to the jury that the results were

reliable and it should find Madrid guilty and answer the special issue in the

affirmative because the evidence proved that Madrid’s breath alcohol concentration

exceeded 0.15. In short, there is nothing in the record that suggests that Madrid was

egregiously harmed. Accordingly, we conclude that even if submitting the question

of whether Madrid’s breath alcohol concentration exceeded 0.15 as a special issue

was error, it did not result in egregious harm. See id. at 174 (harm must be actual,

not just theoretical); see, e.g., Moore v. State, No. 10-09-00386-CR, 2010 WL

3272398, at *3 (Tex. App.—Waco Aug. 18, 2010, pet. ref’d) (mem. op., not

designated for publication) (erroneous submission of elements of offense as special

issues did not constitute egregious harm where sufficient evidence supported all

elements of offense and in answering special issues in the affirmative, jury found all

essential elements of offense).

      We overrule Madrid’s seventh issue.




                                          31
                                   Conclusion

      We affirm the trial court’s judgment.




                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Keyes, Bland, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           32
