Opinion issued April 3, 2014




                                      In The
                               Court of Appeals
                                      For The
                          First District of Texas
                       ————————————
                           NO. 12-00891-CR
                        ———————————
                   PEYTON ASHLEY SIMPSON, Appellant
                                  V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from Chambers County Court
                         Chambers County, Texas
                        Trial Court Case No. 28375


                          MEMORANDUM OPINION
      A jury found Appellant guilty of the misdemeanor offense of driving while

intoxicated. 1 The trial court sentenced Appellant to 180 days in jail, suspended the

sentence, placed him on community supervision for 18 months, and assessed a

$1,200 fine.



1
      See TEX. PENAL CODE ANN. § 49.01 (Vernon 2011).
      Appellant raises four issues on appeal. He asserts the trial court erred by

denying his motion to exclude a video recording, by failing to file findings of fact

and conclusions of law to support the basis for denying the motion, and by failing

to hold a hearing on his motion for new trial.

      We affirm.

                              Background Summary

      At 2 a.m. on June 18, 2011, Trooper T. Norsworthy of the Texas Department

of Public Safety was patrolling FM 565, a two lane road, in Chambers County. He

saw a truck, driven by Appellant, twice cross over the center line into the opposite

lane of traffic. Trooper Norsworthy activated his emergency lights to initiate a

traffic stop of Appellant’s truck. When he activated his emergency lights, the

dashboard video recording device in the trooper’s car was also activated. When he

got out of his patrol car, Trooper Norsworthy turned on the microphone that he

wore on his uniform, referred to as a body microphone.

      As he approached Appellant’s truck, Trooper Norsworthy saw Appellant

attempting to light a cigarette. Appellant was fumbling as he tried to light it.

Trooper Norsworthy instructed Appellant not to light the cigarette.        Trooper

Norsworthy noticed that Appellant smelled of alcohol and had blood-shot eyes.

The officer requested Appellants driver’s license and insurance.           Trooper




                                          2
Norsworthy asked Appellant to step out of his truck. Appellant stumbled, and

Trooper Norsworthy observed that Appellant’s reactions were delayed.

      When Trooper Norsworthy asked Appellant from where he was coming,

Appellant replied that he been at his uncle’s house, but then he admitted that he

had been at a local bar. Trooper Norsworthy asked Appellant if he had been

drinking that night, and Appellant responded that he had. When the officer asked

Appellant how much he had to drink, Appellant answered, “Quite a bit.” Trooper

Norsworthy inquired how much was “quite a bit?” Appellant said that he had

drunk 10 to 12 beers that night.

      Trooper Norsworthy then asked Appellant, on a scale of zero to ten, with

zero being not at all intoxicated, and ten being highly intoxicated, how intoxicated

he was. Appellant indicated six on the intoxication scale.

      Trooper Norsworthy inquired whether Appellant would participate in field

sobriety tests. Appellant initially indicated that he would take the tests, but then he

indicated that he would not participate in the testing. At that point, Trooper

Norsworthy asked Appellant to turn around and place his hands behind his back.

Trooper Norsworthy then put handcuffs on Appellant, arresting Appellant for the

offense of driving while intoxicated.

      The video camera in Trooper Norsworthy’s patrol car visually recorded the

stop and the officer’s interaction with Appellant. Trooper Norsworthy’s body



                                          3
microphone recorded the conversation between Trooper Norsworthy and

Appellant, although some of Appellant’s responses to the officer at the scene

cannot be understood.

      As he was placing the handcuffs on Appellant, Trooper Norsworthy’s

microphone stopped working.         The last thing heard on the video is Trooper

Norsworthy instructing Appellant to turn around and to place his hands behind his

back. The dashboard camera, however, continued to record the scene visually as

Trooper Norsworthy walked Appellant back to the patrol car.

      After he seated Appellant in the back of the patrol car, Trooper Norsworthy

searched Appellant’s truck. During the search, Trooper Norsworthy found an open

bottle of beer, which was half full of beer and still cold.

      Trooper Norsworthy transported Appellant to the local police station.

During the transport, the officer turned the camera around facing the inside of the

cab of his patrol car. Trooper Norsworthy and Appellant conversed during the ride

but no audio was recorded of the conversation.

      After they arrived at the police station, and while Appellant was still seated

in the patrol car, Trooper Norsworthy read the DIC-24 form to Appellant

containing the statutory warnings required before an officer may request a blood or

breath specimen. The last few minutes of the video shows Trooper Norsworthy

opening the back door of the patrol car, leaning over Appellant, and speaking to



                                           4
Appellant. Trooper Norsworthy testified that this showed him reading the DIC-24

form to Appellant.

      Appellant refused to sign the DIC-24 form. He also refused to give the

breath specimen requested by Trooper Norsworthy.

      Appellant was charged by information with the misdemeanor offense of

driving while intoxicated. Before trial, Appellant filed motions to suppress and to

exclude the video that had been recorded by the camera mounted on the dashboard

of Trooper Norsworthy’s patrol car.         At a pretrial hearing, the trial court

determined that the motions would be heard during trial, outside the presence of

the jury.

      After trial commenced, the trial court conducted a suppression hearing

outside the presence of the jury. At the hearing, Appellant sought to have the

video excluded because there was no audio recorded on the video after the point at

which Trooper Norsworthy placed the handcuffs on Appellant. Appellant asserted

that Trooper Norsworthy purposefully turned off the microphone at that point.

      Trooper Norsworthy testified at the hearing. With respect to this issue, the

officer testified that the battery for the microphone he wore was not fully charged

and had stopped working at the time he placed the handcuffs on Appellant.

      Trooper Norsworthy also testified that the microphone in the cab of his

patrol car was not working on the date of the arrest. The officer explained that a



                                        5
“cage” to hold prisoners in the backseat of his patrol had been installed that week.

During the installation, a wire to the microphone in the patrol car had been cut, and

it had not yet been fixed.

      At the hearing, Appellant argued that admission of the video, with the

missing audio portions, violated Code of Criminal Procedure article 38.22, section

3(a)(3) because it was not an accurate recording of a custodial interrogation.2

Appellant alleged that Trooper Norsworthy had deliberately turned off his body

microphone. The trial court overruled Appellant’s motions to exclude and to

suppress the admission of the video.

      Before the State admitted the video at trial, Appellant objected to its

admission on the ground that it was “not a fair and accurate recording of the

totality of the circumstances.” The trial court overruled the objection and the

video, in its entirety, was admitted into evidence. The State also offered into

evidence the DIC-24 form. The only witness to testify for the State was Trooper

Norsworthy. The defense presented no witnesses.

      The jury found Appellant guilty of the offense of driving while intoxicated.

Appellant choose to have the trial court assess punishment.         The trial court

sentenced Appellant to 180 days in jail, suspended the sentence, placed him on

community supervision for 18 months, and assessed a $1,200 fine.

2
      See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (Vernon Supp. 2013
      2005).

                                         6
      Appellant filed a motion for new trial. As a basis for new trial, Appellant

asserted that he had “discovered material evidence favorable to Defendant as

defined by Tex. Code Proc. § 40.001.” To support his motion, Appellant attached

a federal magistrate’s report and recommendation from a drug-possession case

pending in United States District Court in Beaumont, Texas. The drug charges in

that case do not involve Appellant or the underlying facts of this case. Instead, the

charges in the federal case were brought against a person named Coleman, who

had been stopped by Trooper Norsworthy for driving too slowly on Interstate 10.

      In the report, the federal magistrate recommended granting a motion to

suppress filed by Coleman. The recovery of the drugs in that case had resulted

from the traffic stop of Coleman’s vehicle by Trooper Norsworthy. Coleman

asserted that Trooper Norsworthy did not have reasonable suspicion to stop her,

and the magistrate agreed with Coleman in his recommendation to the federal

district court judge.

      Trooper Norsworthy had testified at the suppression hearing.             In his

recommendation, the magistrate questioned the credibility of Trooper Norsworthy

with respect to the officer’s testimony regarding how fast Coleman had been

driving. The magistrate’s report was signed three weeks after the trial in this case.

      In his motion for new trial, Appellant asserted that he was entitled to a new

trial based on the magistrate’s report, which he characterized as “material evidence



                                          7
favorable to [him].” He averred that the magistrate’s report “by a fellow court are

directly relevant to the credibility of the State’s sole witness in this case.”

Appellant claimed that, using the magistrate’s report, he could “effectively cross-

examine the State’s only witness and raise the issue of the Trooper’s credibility

based on the findings of a fellow court.”

      Appellant also offered the affidavit of Coleman’s defense attorney. The

attorney stated that, based on his “dealings” with Trooper Norsworthy, it was his

opinion that Trooper Norsworthy was prone to fabricate or exaggerate facts in

criminal cases to make the case more favorable to the State. He opined that

Trooper Norsworthy was “not worthy of belief” and not credible. The attorney

stated that he would testify to that effect for Appellant in this case.

      Appellant timely presented the motion for new trial to the trial court. The

court made a notation in the record stating, “No hearing set at the time. Waiting on

response from State.” No response is contained in the record. Appellant’s motion

for new trial was not set for hearing. As a result, the motion was overruled by

operation of law. This appeal followed.

      Appellant presents four issues on appeal.

                     Findings of Fact and Conclusions of Law

      In his first issue, Appellant asserts that the trial court erred because it did not

file findings of fact and conclusions of law, which Appellant had requested. The



                                            8
State agreed in its brief that the failure to file the findings of fact and conclusions

of law was error. See State v. Cullen, 195 S.W.3d 696, 700 (Tex. Crim. App.

2006) (stating that, at the request of losing party, trial court is required to enter

express findings of fact and conclusions of law).

       We abated the appeal to allow the trial court to file findings of fact and

conclusions of law in support of its denial of Appellant’s motion to exclude the

video. After the supplemental clerk’s record was received by the Clerk of this

Court, which contains the findings of fact and conclusions of law, we reinstated the

appeal. 3

       Among the trial court’s findings of fact were the following:

       19.    The audio portion of State’s Exhibit 1 [the video] accurately
              recorded the investigative encounter, beginning with the
              Trooper’s self-introduction to the Defendant, and continued up
              [to] the point when the Defendant is arrested.

       20.    No evidence was presented at trial, by either party, of any
              conversation taking place between Trooper Norsworthy and the
              Defendant, from the point of arrest and the audio cutting out,
              until the Trooper read the DIC-24 warnings at jail.
       ....

       22.    No evidence exists to support Defendant’s assertion Trooper
              Norsworthy deliberately turned off his body microphone, or in
              any way intentionally altered or deleted evidence.



3
       In light of the newly filed findings of fact and conclusions of law, we permitted
       the parties to file supplemental briefing; however, no supplemental briefing has
       been filed.

                                           9
         Among its conclusions of law, the trial court determined that Appellant was

detained, not placed under arrest, by Trooper Norsworthy during the criminal

investigation. It also concluded that Appellant had not been placed under arrest

until Trooper Norsworthy instructed Appellant to turn around and place his hands

behind his back to be handcuffed. The court further determined that the audio

portion of the video does not contain any custodial interrogation. Lastly, the trial

court concluded that it had properly denied Appellant’s motion to exclude the

video.

         In light of the trial court’s filing of the findings of fact and

conclusions of law, we dismiss Appellant’s first issue as moot.

                               Admission of Video

         In his third and fourth issues, Appellant asserts that the trial court erred by

denying his motions to exclude and to suppress the video.

A.       Standard of Review

         We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.

Crim. App. 2013). We review the trial court’s factual findings for an abuse of

discretion, but review the trial court’s application of the law to the facts de novo.

Id. We give almost total deference to the trial court’s determination of historical

facts, particularly when the trial court’s fact findings are based on an evaluation of



                                           10
credibility and demeanor. Id.; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.

App. 2010). We give the same deference to the trial court’s conclusions with

respect to mixed questions of law and fact that turn on credibility or demeanor.

State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012) (citing Guzman v.

State, 955 S.W.2d 85, 87–89 (Tex. Crim. App. 1997)). We also review de novo

mixed questions of law and fact that do not depend on credibility and demeanor.

State v. Woodward, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011); Guzman, 955

S.W.2d at 89.

      When the trial court makes specific findings of fact, we determine whether

the evidence supports those findings. Johnson v. State, 414 S.W.3d 184, 192 (Tex.

Crim. App. 2013). As a general rule, we view the evidence in the light most

favorable to the trial court’s ruling, affording the prevailing party the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn

from that evidence. State v. Duran, 396 S.W.3d 563, 571 (Tex. Crim. App. 2013).

B.    Article 38.22

      In his fourth issue, Appellant asserts that the trial court erred by admitting

into evidence “an incomplete audio recording” in violation of Code of Criminal

Procedure article 38.22. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon

Supp. 2013).




                                        11
      Section 3 of article 38.22 requires that an oral statement made as a result of

custodial interrogation be electronically recorded. See TEX. CODE CRIM. PROC.

ANN. art. 38.22 § 3(a). It further requires that “the recording device was capable of

making an accurate recording, the operator was competent, and the recording is

accurate and has not been altered.” Id. Appellant asserts that these requirements

were not fulfilled because the audio on the video stops at the point at which

Trooper Norsworthy formally arrested him by placing him in handcuffs and

leading him to the patrol car.      Appellant intimates that this noncompliance

rendered the whole video—including the portion of the video that has an audio

recording—inadmissible under article 38.22.

      A review of the record shows that Appellant’s incriminating statements

introduced at trial—including his admission that he had drunk 10 or 12 beers and

that he felt his intoxication level was a six—were made immediately after the

traffic stop, while Trooper Norsworthy and Appellant stood near Appellant’s truck.

The audio of these statements is recorded on the scene video. The State did not

introduce any statements made by Appellant after he was formally arrested by

Trooper Norsworthy; that is, the State did not ask Norsworthy to testify about any




                                         12
statements made by Appellant after the audio function stopped working on the

video. 4

       Article 38.22 specifically exempts statements made outside of custody from

the requirement that the statements be recorded. See id. art. 38.22 § 5. Statements

made during an investigative detention are not subject to the requirements of

article 38.22, section 3. See id. It is well-settled that, without more, a roadside

investigation that includes questioning of a DWI suspect is not a custodial

interrogation. See State v. Stevenson, 958 S.W.2d 824, 828–29 (Tex. Crim. App.

1997) (citing Berkemer v. McCarty, 468 U.S. 420, 441–42, 104 S. Ct. 3138, 3151

(1984)); Shpikula v. State, 68 S.W.3d 212, 218 (Tex. App.—Houston [1st Dist.]

2002, pet. ref’d).

       Here, Appellant’s statements, admitted into evidence, were made before his

formal arrest, at the scene, during the DWI investigation and within minutes of the

traffic stop. The trial court correctly concluded that these statements were not

made during a custodial interrogation. See Berkemer, 468 U.S. at 441–442, 104 S.

Ct. at 3151–52 (holding DWI suspect not in custody until formal arrest).


4
       Trooper Norsworthy did testify that, once they arrived at the police station,
       Appellant refused to sign the DIC-24 form and refused to give a breath specimen;
       however, the DIC-24 form was introduced into evidence without objection by
       Appellant. See Elder v. State, 132 S.W.3d 20, 27 (Tex. App.—Fort Worth 2004,
       pet. ref’d) (“The admission of inadmissible evidence can be rendered harmless if
       the same or similar evidence is introduced without objection elsewhere during
       trial.”).

                                          13
Accordingly, the State was not obligated to show compliance with article 38.22’s

requirements as a predicate to have the video admitted into evidence. See Martines

v. State, 371 S.W.3d 232, 243 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(holding that admission of recording of noncustodial statement did not require

State to show article 38.22 compliance).

      We hold that the trial court’s admission of the scene video did not violate

article 38.22. Thus, Appellant has not shown on appeal that the trial court erred

when it denied his motions to exclude and to suppress the video recording based on

a violation of article 38.22.

      We overrule Appellant’s fourth issue.

C. Rule of Evidence 901

      In his third issue, Appellant asserts that the trial court’s denial of his motions

to suppress and to exclude the scene video “contradicts Texas Rule of Evidence

901(a).” In the trial court, Appellant objected to the admission of the scene video

on the ground that it was not “a fair and accurate recording of the totality of the

circumstances.”

      When admitting evidence, the trial court inquires “whether the proponent of

the evidence has supplied facts that are sufficient to support a reasonable jury

determination that the evidence he has proffered is authentic.” Tienda v. State, 358

S.W.3d 633, 638 (Tex. Crim. App. 2012). Rule of Evidence 901 governs the



                                           14
admissibility of electronic recordings. Jones v. State, 80 S.W.3d 686, 688 (Tex.

App.—Houston [1st Dist.] 2002, no pet.); see TEX. R. EVID. 901.

      Rule 901(a) provides that authentication is “satisfied by evidence sufficient

to support a finding that the matter in question is what its proponent claims.” TEX.

R. EVID 901(a).      Rule 901(b) contains a nonexclusive list of methods for

authenticating evidence, including testimony from a witness with knowledge “that

a matter is what it is claimed to be.” TEX. R. EVID. 901(b)(1).

      Appellant does not assert that the video recording admitted into evidence is

not a recording of his conversation with Trooper Norsworthy at the scene. Indeed,

Trooper Norsworthy’s testimony indicated that the video contained a recording of

the activities and conversation between him and Appellant while the officer was

conducting the investigation along the roadside. Instead, Appellant challenges the

admission of the video because it does not contain any audio recording for the

portion of the tape when Appellant was seated in the backseat of the patrol car after

his arrest. It is undisputed that Trooper Norsworthy and Appellant engaged in

some conversation while Appellant was in the backseat; however, the content of

the dialogue cannot be heard.

      Appellant argues that, because the audio on the video was incomplete, the

recording was “not a true and accurate representation of the events that took place

on the night of Appellant’s arrest.” Appellant further asserts that the incomplete



                                         15
audio recording “[did] not give the jury a complete understanding of the context in

which any of Appellant’s statements were made.” He compares the video to a

recording that contains pauses or breaks. Cf. Angleton v. State, 971 S.W.2d 65, 69

(Tex. Crim. App. 1998) (holding that audio recording that had been enhanced to

eliminate background noise was admissible pursuant to Rule 901 and noting in the

analysis that recording contained no pauses or breaks).

      In his testimony, Trooper Norsworthy explained why there was no audio on

the portion of the video in which Appellant was seated in the patrol car. He

testified that the battery on his body microphone ran out of power at the point he

arrested Appellant. He also explained why the microphone in the cab of his patrol

car was not operational on that date. Trooper Norsworthy testified that the video

depicted him transporting Appellant to the police station but was clear in his

testimony that there was no audio recording made during that time. Trooper

Norsworthy did not mention any statements made by Appellant while he was

transporting Appellant to the police station. Nor did the State offer, refer to, or

otherwise rely on any statements made by Appellant while he was being

transported.

      Trooper Norsworthy also testified that he is seen at the end of the video

reading the warnings in DIC-24 form to Appellant, after they arrived at the police

station. In the video, Appellant is seen seated in the back of the patrol car.



                                        16
Appellant’s back door is open, and Trooper Norsworthy is standing near him,

leaning over. Trooper Norsworthy is speaking to Appellant with some papers in

his hands. Trooper Norsworthy testified that Appellant refused to sign the form

and refused to give a breath specimen. In conjunction with Trooper Norsworthy’s

testimony, the DIC-24 form was admitted into evidence without objection.

      Based on the record, we conclude that Trooper Norsworthy’s testimony was

sufficient for the trial court to determine that the video recording was what Trooper

Norsworthy and the State claimed it to be. See TEX. R. EVID. 901(a); see also

Hines v. State, 383 S.W.3d 615, 624 (Tex. App.—San Antonio 2012, pet. ref’d).

However, even if Appellant is correct, and the trial court erred in admitting the

video recording, we hold any such error was harmless.

      Erroneous admission of evidence is non-constitutional error and must be

disregarded unless it affects substantial rights. TEX. R. APP. P. 44.2(b). We must

examine the record as a whole and have “‘fair assurance that the error did not

influence the jury, or had but a slight effect’” to determine that substantial rights

are not affected. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002)

(quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). Only if

we have a “grave doubt that the result of the trial was free from the substantial

effect of the error” will we reverse a conviction. Barshaw v. State, 342 S.W.3d 91,

94 (Tex. Crim. App. 2011). Grave doubt exists when the matter is so evenly



                                         17
balanced that the judge feels “‘in virtual equipoise as to the harmlessness of the

error.’” Id. (quoting Burnett v. State, 88 S.W.3d 633, 637–38 (Tex. Crim. App.

2002)).

      In this case, the video depicted, visually and audibly, the conversation

between Appellant and Trooper Norsworthy, which took place immediately after

the traffic stop. This is the portion of the video relied on by the State to prove

intoxication, containing the incriminating statements made by Appellant.

      The State also offered other evidence of intoxication. Trooper Norsworthy

testified that he observed signs that Appellant was intoxicated, which are not

depicted in the video. He stated that Appellant smelled of alcohol, had blood-shot

eyes, and delayed reactions. The officer also testified that he found a half-full

bottle of beer in Appellant’s truck that was still cold, indicating that Appellant had

been drinking before the stop.

      Lastly, as mentioned, the State did not rely on any statements or conduct of

Appellant during the portion of the video when the audio function was not

working. The only exception to this is when Trooper Norsworthy explained the

DIC-24 form to Appellant. However, as mentioned, the form was introduced into

evidence without objection. Accordingly, any error in the admission of the video

recording did not affect Appellant’s substantial rights and was harmless error. See

TEX. R. APP. P. 44.2(b).



                                         18
      Based on the foregoing, we conclude that the trial court did not err in

admitting the videotape, and that if it did, such error was harmless. We overrule

Appellant’s third issue.

                            Hearing on Motion for New Trial

      In his second issue, Appellant asserts that the trial court erred when it did not

hold a hearing on his motion for new trial.

      The purpose of a hearing on a motion for new trial is (1) to decide whether

the cause should be retried and (2) to prepare a record for presenting issues on

appeal in the event the motion is denied. Smith v. State, 286 S.W.3d 333, 338

(Tex. Crim. App. 2009). A defendant, however, does not have an absolute right to

a hearing on his motion for new trial. Hobbs v. State, 298 S.W.3d 193, 199 (Tex.

Crim. App. 2009). Rather, he is entitled to a hearing when he (1) raises matters

which are not determinable from the record and (2) establishes reasonable grounds

showing that he could potentially be entitled to relief. Id.

      We review the trial court’s denial of a hearing on a motion for new trial for

an abuse of discretion.     Smith, 286 S.W.3d at 339.          A trial court abuses its

discretion when the ruling “was so clearly wrong as to lie outside that zone within

which reasonable persons might disagree.” Id. “Our review . . . is limited to the

[trial court’s] determination of whether the defendant has raised grounds that are




                                          19
both undeterminable from the record and reasonable, meaning they could entitle

the defendant to relief.” Id.

      Here, Appellant claims that he is entitled to a hearing on his motion for new

trial to permit him to develop and to supplement the record with newly discovered

evidence, which is favorable to him. Appellant cites the federal magistrate’s report

and recommendation, and the defense attorney’s affidavit, from the unrelated

Coleman drug case in which the federal magistrate recommended granting

Coleman’s motion to suppress and commented on Trooper Norsworthy’s

credibility as it related to one aspect of his testimony in that case. Appellant

asserts the magistrate’s report and the attorney’s affidavit speak to the credibility

of Trooper Norsworthy, the State’s only witness. Appellant asserts, “Impeachment

evidence, such as that presented by the federal case, would present a direct

challenge to the reliability of the evidence presented by the State at trial.”

      A defendant is not entitled to a hearing on a motion for new trial unless the

motion and supporting affidavits reflect that reasonable grounds exist for granting

a new trial. See Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003);

see also Espinoza v. State, 185 S.W.3d 1, 6 (Tex. App.—San Antonio 2005, no

pet.). Reasonable grounds exist for granting a motion for new trial on newly-

discovered evidence only when the motion meets the requirements of article




                                           20
40.001 of the Code of Criminal Procedure. See Wallace, 106 S.W.3d at 108;

Espinoza, 185 S.W.3d at 6.

      Article 40.001 provides that “[a] new trial shall be granted an accused where

material evidence favorable to the accused has been discovered since trial.” TEX.

CODE CRIM. PROC. ANN. art. 40.001 (Vernon 2006). Interpreting this statute, the

Court of Criminal Appeals has held that a defendant is entitled to have a motion for

new trial granted when

      (1) the newly discovered evidence was unknown to him at the time of
      trial; (2) his failure to discover the new evidence was not due to his
      lack of due diligence; (3) the new evidence is admissible and not
      merely cumulative, corroborative, collateral, or impeaching; and (4)
      the new evidence is probably true and will probably bring about a
      different result in a new trial.

Wallace, 106 S.W.3d at 108.

      Here, Appellant asserts that he seeks to use information from the federal

drug case to impeach the credibility of Trooper Norsworthy in this case. As stated

in Wallace, newly discovered evidence must not merely be impeaching to entitle a

defendant to a new trial. See id.; see also Boyett v. State, 692 S.W.2d 512, 517

(Tex. Crim. App. 1985) (interpreting predecessor to article 40.001).

      We conclude that Appellant did not show a reasonable ground existed for

granting his motion for new trial based on newly-discovered evidence. See Boyett,

692 S.W.2d at 517 (recognizing that evidence which merely impeaches does not

show entitlement to a new trial); Hogan v. State, 943 S.W.2d 80, 83 (Tex. App.—


                                        21
San Antonio 1997, pet. ref’d) (holding that newly discovered evidence that

complainant was known to lie and of a questionable moral character did not entitle

appellant to a new trial, in part, because such evidence was merely collateral and

impeaching); Ramirez v. State, 830 S.W.2d 827, 829 (Tex. App.—Corpus Christi

1992, no pet.) (holding that newly discovered evidence regarding arresting

officer’s discharge from police force did not justify new trial because evidence was

inadmissible and merely impeaching). Thus, we hold that the trial court did not

abuse its discretion when it did not hold a hearing on the new trial motion. See

Wallace, 106 S.W.3d at 108.

      We overrule Appellant’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Jennings, Higley, and Sharp.

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




                                        22
