Affirmed and Opinion filed August 6, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00573-CR

                  JORDAN MICHAEL BURDICK, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                On Appeal from the County Court at Law No. 2
                           Galveston County, Texas
                     Trial Court Cause No. MD-0331762

                                   OPINION

      In this appeal from a conviction for driving while intoxicated, we consider
five issues, each arising out of the State’s failure—and in one instance, its
refusal—to turn over evidence that appellant requested during discovery. Finding
no reversible error, we overrule each issue and affirm the trial court’s judgment.
                                  BACKGROUND

      Appellant was pulled over late at night after an officer observed him swerve
without warning and narrowly miss a parked car. When the officer asked for
appellant’s license and proof of insurance, appellant gave an unusual response,
saying that he, as an individual, did not have an expiration date. Appellant fumbled
through his documents, dropping some of them on his floorboard. According to the
officer, appellant was slurring his speech, and he had “extremely watery bloodshot
eyes and droopy eyelids.” The officer also detected “a strong odor of alcohol
coming out of the vehicle.”

      The officer administered three field sobriety tests, which were all recorded
on a dash cam video. The officer identified six out of six possible clues of
intoxication on the horizontal gaze nystagmus test. When the officer asked for
appellant to perform the walk and turn test, appellant claimed that he suffered from
bad knees, but that he was still capable of performing the test. Appellant stumbled
through the test, displaying seven out of eight clues. Appellant performed poorly
on the one-legged stand test as well, displaying four out of four clues. Based on all
of the signs of intoxication, the officer arrested appellant and transferred him to the
county jail for processing.

      The date of arrest was January 16, 2013. Two weeks later, on January 30,
appellant sent a letter to the district attorney’s office, requesting the preservation of
all recordings that depicted him on the date of the alleged offense. In addition to
the dash cam video, appellant specifically requested the booking and intake videos
at the county jail. The State turned over the dash cam video, but no other
recordings.

      Appellant moved for additional discovery, and in October of 2013, the trial
court granted his motion and ordered the State to turn over all “sally port videos,
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booking videos, and jail videos” that depicted appellant in this case. Still, no other
recordings were ever produced.

      Appellant moved to dismiss the case, claiming that the State’s failure to
produce the other videos was prejudicial and in violation of Brady v. Maryland.
During a pretrial hearing on that motion, appellant testified that he walked
normally into the booking and intake area on the night of his arrest, without ever
stumbling and without the assistance of another person. Appellant asserted that if
the other videos had been produced, they would show that he had not lost the
normal use of his mental and physical faculties.

      The State called a representative from the jail, who testified that the jail has
two video systems in the booking and intake area. One of the systems stores videos
for four days, whereas the other system stores videos for seventeen days. At the
end of those time periods, the videos are taped over.

      The representative explained that the jail does not have an official policy for
keeping the videos in the booking and intake area. Instead, the retention period is
determined by presets in the video equipment. The representative testified that the
video from the seventeen-day system could have been preserved by the time
appellant had made his request. However, appellant sent his request to the district
attorney’s office, rather than the jail, and the representative claimed that he never
received timely notice of a request. Consequently, the videos from both systems
were lost. The trial court denied the motion to dismiss.

      Shortly before trial, the State sent appellant a “File Memo / Brady Notice,”
claiming that it had obtained the arresting officer’s personnel file from another
police department where the officer had previously been employed. The State
asserted in this notice that the officer’s employment with that other department had
been terminated following an administrative investigation. The State did not
                                          3
apprise appellant of the reasons for that investigation. However, the State advised
appellant that, upon request, it would supply the officer’s personnel file to the trial
court for an in camera inspection to determine whether the file qualified as either
Brady or Giglio material.

       Both sides agreed to an in camera inspection. In a written order, the court
answered that it “has reviewed the provided material and has determined that none
of the material constitutes Brady or Giglio material in the instant case.” The State
accordingly refused to turn over the personnel file. Appellant moved for a
continuance to independently investigate the officer, but the trial court denied that
motion.

      During the trial on the merits, the officer was the State’s only witness. The
officer published his dash cam video for the benefit of the jury, and he opined that
appellant was intoxicated on the night of the traffic stop. No evidence was ever
presented regarding the alcohol concentration in appellant’s blood, breath, or urine.

      Testifying in his own defense, appellant admitted that he had consumed
three beers on the night in question, but he insisted that he was not intoxicated.
Appellant explained that his coordination, or lack thereof, was the product of
fatigue and previous bodily injury. Appellant testified that he was tired during his
interaction with the officer because he had been awake for many hours. He also
testified that he performed poorly during the field sobriety tests because doctors
had operated on his knees three times in the past, and those surgeries affected his
balance. Appellant also stated that the cold, January weather was another factor
that negatively impacted his knees. The jury rejected these explanations and
convicted appellant as charged.

      After the verdict, but before the trial court’s plenary power had expired,
appellant received the officer’s personnel file from his previous employer.
                                          4
Appellant filed a motion for new trial, claiming that he had reason to believe that
this file contained more documents than what the State had submitted to the trial
court for an in camera inspection. Appellant attached a sample of the documents to
his motion, and the attachments revealed, among other things, that the officer had
been terminated because he used his authority to harass a young woman, with
whom he apparently had a prior romantic relationship. Appellant argued that this
newly available evidence was material and would have been used to impeach the
officer. By written order, the trial court denied appellant’s motion for new trial,
without ever having conducted a hearing.

                          MOTION FOR NEW TRIAL

      We consider appellant’s first and second issues together because they are
interrelated. In his first issue, appellant argues that the trial court abused its
discretion by disposing of his motion for new trial without the benefit of a hearing.
In his second issue, he argues that the trial court abused its discretion by denying
the motion itself. We address these points in reverse order.

I.    Denial of the Motion

      A trial court’s ruling on a motion for new trial is reviewed for an abuse of
discretion. See Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). The
test for an abuse of discretion is whether the trial court’s decision was so clearly
wrong as to lie outside the zone of reasonable disagreement. See Webb v. State,
232 S.W.3d 109, 112 (Tex. Crim. App. 2007).

      To be entitled to a new trial on the basis of newly discovered or newly
available evidence, the defendant must show:

      (1) the newly discovered evidence was unknown or unavailable to the
      defendant at the time of trial;


                                          5
      (2) the defendant’s failure to discover or obtain the new evidence was
      not due to the defendant’s 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.

See Carsner v. State, 444 S.W.3d 1, 2–3 (Tex. Crim. App. 2014). We need only
focus on the final two prongs of this test, because they are dispositive.

      Appellant argued that he was entitled to a new trial because the newly
discovered evidence showed that the officer was not credible. The proof attached
to appellant’s motion addressed a wide variety of subjects. Several documents
revealed that the officer had been reprimanded by his previous employers for
conduct unbecoming of an officer. In one instance, which actually resulted in
termination, the officer abused his authority by threatening to arrest a young
woman whom he previously had dated. In addition to this evidence of professional
misconduct, appellant also attached a copy of the officer’s college transcript, which
showed an unremarkable, if not a poor, academic record.

      Appellant asserted elsewhere in his motion that the officer had a history of
breaking the law and of selectively enforcing DWI laws. The only proof offered in
support of these assertions was described as an “audio recording available for
review.” There is no indication that appellant supplied that audio recording to the
trial court. Nor has that recording been included in our record on appeal.

      Even if we assumed the veracity of appellant’s claims, the evidence shows,
at most, that the officer has a blemished or imperfect background. The State did
not acknowledge this background during trial. To the contrary, the State portrayed
the officer as an exemplary public servant with a history of commendations.



                                          6
      We do not doubt that the newly discovered evidence was “possibly useful to
the defense,” see Giglio v. United States, 405 U.S. 150, 154 (1972), but we cannot
agree that the evidence would have materially altered the outcome of the trial had
it been made available. Appellant admitted on the stand that he consumed three
beers on the night of his arrest, and the video evidence clearly showed that he was
impaired. Appellant argued that the reason for his impairment was his fatigue and
bad knees, and not his consumption of alcohol, but the jury rejected that defense
and found that he was intoxicated. There is no reasonable probability that the
newly discovered evidence, which merely impeached the officer’s history of
professionalism, would have changed the jury’s assessment of appellant’s
intoxication. Cf. Boyett v. State, 692 S.W.2d 512, 517 (Tex. Crim. App. 1985)
(newly discovered impeachment evidence against an officer did not warrant a new
trial where the evidence was immaterial because it did not advance a defensive
theory); Ramirez v. State, 830 S.W.2d 827, 829 n.1 (Tex. App.—Corpus Christi
1992, no pet.) (newly discovered impeachment evidence against an officer did not
warrant a new trial where the evidence “approache[d] insignificance” because it
merely showed that, on an unrelated occasion, the officer missed a day of work
under a false pretense to spend some time with his girlfriend); see also Saldivar v.
State, 980 S.W.2d 475, 485–87 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d)
(newly discovered impeachment evidence regarding a witness’s criminal history
was not material because the State’s case was strong and the defense was able to
impeach the witness with her prior inconsistent statement).

      The trial court did not abuse its discretion by denying appellant’s motion for
new trial.




                                         7
II.   Failure to Conduct a Hearing

      We review the trial court’s failure to conduct a hearing on a motion for new
trial under the same standard as before: an abuse of discretion. See Martinez v.
State, 74 S.W.3d 19, 21–22 (Tex. Crim. App. 2002).

      The purpose of the hearing is to decide whether the cause should be retried
and to prepare a record for presenting issues on appeal in the event the motion is
denied. See Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). Although
the hearing on a motion for new trial is a critical stage, the right to such a hearing
is not absolute. See Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005).
A hearing is not required when matters raised in the motion are subject to being
determined from the record. See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim.
App. 1993).

      If a defendant has raised matters not determinable from the record, a trial
court is not required to conduct a hearing unless the defendant further establishes
the existence of “reasonable grounds” showing that he “could be entitled to relief.”
Id. This reasonableness requirement serves to prevent “fishing expeditions.” Id.
The defendant need not establish a prima facie case for a new trial, nor must his
proof reflect every component legally required to establish his entitlement to a new
trial. See Smith, 286 S.W.3d at 339. It is sufficient if a fair reading of the proof
gives rise to reasonable grounds in support of the defendant’s claim. Id.

      As discussed above, appellant moved for a new trial, claiming that the newly
discovered evidence would have been used to impeach the officer. Appellant
argued that this impeachment evidence was critical because the officer was the
State’s only witness and, therefore, attacking his credibility was paramount.




                                          8
      The proof attached to appellant’s motion consisted of documents from the
officer’s personnel file and academic record. Appellant indicates in his brief that,
had a hearing been conducted on his motion, he would have been able to develop
additional details regarding these documents. Appellant focuses specifically on
four allegations: (1) the officer had selectively enforced DWI laws; (2) the officer
had broken other laws himself; (3) the officer was untruthful about his training and
education; and (4) the officer had been fired and reprimanded in previous law
enforcement positions. Appellant also argues that a hearing would have allowed
the trial court to listen to an audio recording that supported some of these
allegations.

      At best, a hearing would have established that appellant had an evidentiary
basis for challenging the officer’s credibility. However, the impeachment value
from that evidence would have been limited to attacking the officer’s history of
professionalism. The impeachment evidence would not have negated the officer’s
ability to assess appellant’s intoxication on the night of the arrest. The trial court
could have reasonably concluded that the newly discovered impeachment evidence
was not material, and therefore, that appellant had not established reasonable
grounds for granting a new trial. See Wallace v. State, 106 S.W.3d 103, 108 (Tex.
Crim. App. 2003) (holding that a trial court could deny a hearing on a motion for
new trial if it could reasonably conclude that the newly discovered evidence
attached to the motion was not compelling enough to overcome the strength of the
State’s case).

      The trial court did not abuse its discretion by denying appellant’s motion for
new trial without the benefit of a hearing.




                                          9
                        MOTION FOR CONTINUANCE

      In his third issue, appellant contends that the trial court abused its discretion
by denying his motion for continuance. As stated earlier, appellant filed his motion
after the trial court determined, following an in camera inspection, that the
officer’s personnel file did not qualify as either Brady or Giglio material. Appellant
requested additional time to investigate the officer and obtain his personnel file
because he believed that new evidence existed regarding the officer.

      A defendant must satisfy a two-prong test to show reversible error
predicated on the denial of a pretrial motion for continuance. See Gonzales v. State,
304 S.W.3d 838, 843 (Tex. Crim. App. 2010). First, the defendant must show that
“the case made for delay was so convincing that no reasonable trial judge could
conclude that scheduling and other considerations as well as fairness to the State
outweighed the defendant’s interest in delay of the trial.” Id. (citing George E. Dix
& Robert O. Dawson, 42 Texas Practice: Criminal Practice and Procedure § 28.56
(2d ed. 2001)). Second, the defendant must show that he was actually prejudiced
by the denial of his motion. Id. This standard is met if the defendant can establish
“with considerable specificity [that he] was harmed by the absence of more
preparation time than he actually had.” Id. at 842.

      There is no need to address the first prong of this test because appellant
cannot show that he was actually prejudiced. After the trial was over, appellant
received a copy of the officer’s personnel file, which is what he sought to discover
had the continuance been granted. In his motion for new trial, appellant asserted
that he had reason to believe that his copy of the officer’s personnel file contained
more information than what the trial court had reviewed during its in camera
inspection. Appellant argues now that he would have used this greater file “to rebut
the false impression that [the officer] was a credible, decorated, police officer.”

                                          10
However, even if the evidence were admissible for the limited purpose of
impeachment, there is no reasonable likelihood that the outcome of trial would
have been different, as we explained in appellant’s previous two issues.

      Because appellant has not shown that he was harmed by the absence of
additional preparation time than he actually had, we conclude that the trial court
did not reversibly err by denying the motion for continuance.

                             MOTION TO DISMISS

      In his fourth issue, appellant complains about the denial of his motion to
dismiss. Appellant predicates this issue on the State’s failure to preserve the
booking and intake videos at the county jail, which he believes were exculpatory.

      When reviewing a trial court’s decision on a motion to dismiss, we apply a
bifurcated standard, giving almost total deference to the trial court’s findings of
fact that are supported by the record, as well as any mixed questions of law and
fact that rely upon the credibility of witnesses. See State v. Dinur, 383 S.W.3d 695,
699 (Tex. App.—Houston [14th Dist.] 2012, no pet.). For pure questions of law or
mixed questions that do not depend on credibility determinations, our review is de
novo. See State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011).

      The United States Supreme Court has explained that there is a difference
between “material exculpatory evidence” and “potentially useful evidence,” and
that difference informs our analysis when deciding whether the State’s failure to
disclose or preserve evidence violates a defendant’s guarantee of due process of
law. See Illinois v. Fisher, 540 U.S. 544, 547–48 (2004) (per curiam). With
material exculpatory evidence, a due process violation occurs whenever the State
suppresses or fails to disclose such evidence, regardless of whether the State acted
in bad faith. See Brady v. Maryland, 373 U.S. 83, 87 (1963). With potentially


                                         11
useful evidence, however, the State’s failure to preserve such evidence does not
amount to a due process violation unless the defendant can show bad faith on the
part of the State. See Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988).
Potentially useful evidence is “evidentiary material of which no more can be said
than that it could have been subjected to tests, the results of which might have
exonerated the defendant.” Id. at 57.

I.    The videos were not material exculpatory evidence.

      Appellant argues that he is not required to show bad faith in this case
because the booking and intake videos were material exculpatory evidence.
Appellant bases this argument on his uncontroverted testimony during the hearing
on the motion to dismiss that he walked into the county jail normally and without
the assistance of another.

      To meet the standard of constitutional materiality, the evidence must possess
“an exculpatory value that was apparent before the evidence was destroyed, and be
of such a nature that the defendant would be unable to obtain comparable evidence
by other reasonably available means.” See California v. Trombetta, 467 U.S. 479,
489 (1984). “The mere possibility that an item of undisclosed information might
have helped the defense, or might have affected the outcome of the trial, does not
establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S.
97, 109–10 (1976). “The evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” United States v. Bagley, 473
U.S. 667, 682 (1985).

      We agree that videos of appellant walking normally through the booking and
intake area could have been useful to the defense. However, the exculpatory value
                                         12
of those videos would have been slight when compared to the body of inculpatory
evidence that the State was able to produce. There was compelling evidence that
appellant was impaired at the time of the traffic stop, and this evidence consisted of
both live testimony from the officer and video evidence of appellant failing his
field sobriety tests. Videos recorded after the field sobriety tests showing appellant
walking normally would not be sufficient to undermine confidence in the outcome.
Those videos would “cut both ways” because a reasonable juror could still
conclude that appellant failed the field sobriety tests because of his intoxication,
rather than his bad knees. See Barre v. State, 826 S.W.2d 722, 725 (Tex. App.—
Houston [14th Dist.] 1992, pet. ref’d). Appellant did not show a reasonable
probability that the outcome of the trial would have been different, but for the
State’s failure to preserve the booking and intake videos. Cf. Higginbotham v.
State, 416 S.W.3d 921, 926–27 (Tex. App.—Houston [1st Dist.] 2013, no pet.)
(missing video from the scene, which had slight exculpatory value, was not
material where video taken at the police station showed that the defendant had
failed his field sobriety tests); Chandler v. State, 278 S.W.3d 70, 74–75 (Tex.
App.—Texarkana 2009, no pet.) (defendant charged with assaulting a correctional
officer could not establish that lost jailhouse video was favorable where “the only
evidence concerning the video is that it did not clearly depict the confrontation and
did not assist in determining what occurred”).

II.   Appellant did not carry his burden under Youngblood.

      We believe that this case is governed by the standard set forth in
Youngblood involving the destruction of potentially useful evidence. Under that
standard, appellant was required to demonstrate that the State acted in bad faith by
failing to preserve his requested videos. “[B]ad faith entails some sort of improper
motive, such as personal animus against the defendant or a desire to prevent the

                                         13
defendant from obtaining evidence that might be useful.” Ex parte Napper, 322
S.W.3d 202, 238 (Tex. Crim. App. 2010). A showing of negligence does not
qualify as bad faith. See Youngblood, 488 U.S. at 58.

      Here, appellant contends that the State acted in bad faith because the district
attorney’s office received a written request to preserve the videos, but it apparently
did not forward that request to the county jail. This argument is insufficient. As the
United States Supreme Court explained in Fisher, there has never been a holding
or suggestion that the existence of a pending discovery request eliminates the
necessity of showing bad faith whenever the State happens to destroy potentially
useful evidence. See Fisher, 540 U.S. at 548. To create such a per se rule would
negate the very purpose of the bad faith requirement, which is to limit the State’s
obligation to preserve evidence “to reasonable grounds” and only in those cases
“where the interests of justice most clearly require it.” Id. (citing Youngblood, 488
U.S. at 58).

      Outside the pending discovery request, appellant did not produce any
evidence of bad faith. The representative from the jail testified that the videos were
lost because they were taped over after seventeen days. The representative also
explained that the overwriting process was built into the video equipment and that
there was not an official policy from the jail regarding the handling of old tapes.
There was no indication of personal animus or of a conscious disregard for
appellant’s rights. The trial court was free to conclude that the State had not acted
in bad faith.

      In a related argument, appellant contends that a finding of bad faith should
have been made from the State’s noncompliance with an administrative regulation.
Appellant refers to the record retention schedules, which require “video of
prisoners in cells or other areas of a jail or holding facility” to be retained for at

                                         14
least thirty days. See 13 Tex. Admin. Code § 7.125(a)(5) (Record No. PS4200-17).
Because the video systems in the booking and intake area did not meet this
minimum standard, appellant argues that the State’s destruction of evidence
amounts to more than mere negligence.

         Appellant did not raise the regulation as a basis for relief in his motion to
dismiss. Nor was the regulation ever discussed in the hearing on the motion to
dismiss. Even if we assumed that the regulation could be raised now—and
assuming further that it applies to the booking and intake area of the jail—we
would still conclude that the trial court did not err. The trial court could have
reasonably concluded that the loss of the videos in violation of the regulation was
negligent at most. See also Youngblood, 488 U.S. at 58 (indicating that a court
should avoid a construction of the Due Process Clause that might “impos[e] on the
police an undifferentiated and absolute duty to retain and to preserve all material
that might be of conceivable evidentiary significance in a particular prosecution”);
Zapata v. State, 449 S.W.3d 220, 229 (Tex. App.—San Antonio 2014, no pet.)
(rejecting argument that the State’s compliant destruction of evidence pursuant to a
different record retention schedule amounted to a per se violation of the Due
Process Clause).

         The trial court did not err by denying appellant’s motion to dismiss. See
Gutierrez v. State, 419 S.W.3d 547, 551–52 (Tex. App.—San Antonio 2013, no
pet.).

                                   JURY CHARGE

         In his final issue, appellant argues that the trial court committed a charge
error when it denied a requested spoliation instruction. As with his fourth issue,
appellant bases this complaint on the loss of the booking and intake videos at the
county jail.
                                           15
      We review a complaint of jury-charge error under a two-step process,
considering first whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005). If error does exist, we then analyze that error for harm under the
procedural framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.
1984).

      Assuming without deciding that the trial court erred by denying the
requested instruction, appellant is only entitled to relief if the record shows that he
suffered “some harm.” See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App.
2013). Under this standard, the harm must be actual, not merely theoretical. Id. We
consider several factors: (1) the jury charge as a whole, (2) the arguments of
counsel, (3) the entirety of the evidence, and (4) any other relevant information
from the record. Id.

      The charge was standard in this case. It asked the jury to determine whether
appellant was guilty of a single count of operating a motor vehicle in a public place
while he was intoxicated. The charge did not contain any instruction that the jury
may make an adverse inference from the State’s destruction or nonproduction of
evidence, which is what appellant sought in his requested spoliation instruction.

      Defense counsel raised many defensive arguments during his closing
statement, and he began by focusing on the officer’s credibility. Counsel argued
that the dash cam video did not show appellant swerve or nearly hit a parked car,
which is what the officer had claimed in his testimony. Counsel argued that the
officer’s lie cast his entire testimony into doubt.

      Counsel then turned to appellant’s performance in the field sobriety tests.
Starting with the horizontal gaze nystagmus test, counsel emphasized that
appellant’s eyes were not clearly visible on the video. Claiming that the test was
also unreliable, counsel argued that there was reasonable doubt as to appellant’s
                                           16
intoxication. As for the other two tests, counsel reiterated that appellant had bad
knees, which he blamed as the cause of appellant’s poor performance.

       The discussion then shifted to the missing videos from the booking and
intake area. Counsel emphasized that he had made a timely request for at least one
of these videos from the district attorney’s office. He also emphasized appellant’s
testimony that this video would have depicted appellant walking normally on the
night of his arrest.

       Knowing that the charge would not contain his requested spoliation
instruction, counsel implored the jury to make an adverse inference against the
State. He couched his argument in terms of reasonable doubt, which was
referenced in the charge. Counsel argued as follows:

             So why didn’t the DA’s office present you with those videos?
       Presumably, they would have if the evidence contained in those
       videos was helpful to them, don’t you think? If they thought they
       proved that Mr. Burdick had lost the normal use of his mental and
       physical faculties, they would have shown you those videos.
              So what can we conclude from that? What—those videos must
       have shown something pretty favorable to Mr. Burdick, wouldn’t you
       say? And the fact that the DA’s office went to such lengths to make
       sure they would never see the light of day . . . . You better believe
       that’s reasonable doubt.

       The State’s response to this line of argument was minimal. The State advised
the jury that it should not accept this “nonsense” theory that there was a statewide
conspiracy against appellant. Focusing instead on the evidence that was admitted,
the State argued that this was “a common sense trial,” with overwhelming proof of
appellant’s intoxication.

       And indeed, there was overwhelming proof. Appellant admitted that he had
consumed three beers on the night of his arrest. The evidence revealed that

                                        17
appellant had bloodshot eyes, that he was slurring his speech, or that an odor of
alcohol was coming out of his vehicle. The dash cam video also clearly showed
that appellant was impaired during his attempt of the field sobriety tests.

      Although we may not conduct a sufficiency-type analysis when reviewing
the existence of harm under Almanza, we may examine the quality of the defensive
evidence. See Cornet v. State, 417 S.W.3d 446, 453 (Tex. Crim. App. 2013). Here,
appellant’s only explanations for his impairment—fatigue and bad knees—were
not very strong. It is not clear to this court how appellant’s bad knees could have
affected his performance during the horizontal gaze nystagmus test. Assuming that
fatigue may have had an impact, there is no evidence that appellant complained of
fatigue at any point during the traffic stop.

      As for the other field sobriety tests, appellant stated on the dash cam video
that he believed he was capable of completing the tests, despite his bad knees. At
that time, appellant was in the best position to know his own limitations. The
officer did not pressure or coerce appellant into proceeding with the tests. Even
though he claimed that he could perform the tests, appellant stumbled through
them, displaying multiple clues of intoxication.

      Altogether, the State put on a compelling case. Against that backdrop of
overwhelming evidence, the jury had an opportunity to give effect to appellant’s
spoliation claim. The jury heard testimony that appellant walked normally through
the jail. The jury heard additional testimony that a request had been made for video
evidence from the jail, which purported to prove that appellant had walked
normally. Finally, during closing arguments, the jury was invited to conclude that
the State had destroyed that video evidence because it would have favored the
defense. Yet the jury still found that appellant was intoxicated. Based on the
charge, evidence, and arguments of counsel, the record strongly indicates that the

                                           18
jury considered and rejected appellant’s plea for an adverse inference. We
therefore conclude that appellant did not suffer harm from any error in the denial
of his requested spoliation instruction. See id. at 454 (concluding that error in
denying a defensive instruction was harmless where the defensive theory was
discussed during closing arguments and the record indicated that the jury rejected
it); see also Erickson v. State, 13 S.W.3d 850, 852 (Tex. App.—Austin 2000, pet.
ref’d) (holding that any error in failing to narrow the definition of “intoxicated”
was harmless where defense counsel advised the jury during closing arguments
that it only needed to consider the defendant’s use of alcohol, and not the other
intoxicants mentioned in the charge); Mena v. State, 749 S.W.2d 639, 641–42
(Tex. App.—San Antonio 1988, pet. ref’d) (holding that any error in failing to
specify that the State carried the burden of proof was harmless where both sides,
during closing argument, correctly stated the law regarding the burden of proof).

                                 CONCLUSION

      The judgment of the trial court is affirmed.




                                      /s/     Tracy Christopher
                                              Justice



Panel consists of Justices Christopher, Brown, and Wise.
Publish — Tex. R. App. P. 47.2(b).




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