                                                OPINION
                                          No. 04-11-00615-CR

                                      Richard Anthony BALDEZ,
                                               Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                      From the County Court at Law No. 4, Bexar County, Texas
                                      Trial Court No. 297746
                              Judge Sarah E. Garrahan, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: July 11, 2012

AFFIRMED

           Richard Anthony Baldez appeals his conviction for driving while intoxicated. We affirm

the judgment of the trial court.

                                                BACKGROUND

           At 11:19 p.m. on July 25, 2009, Officer Eric Rubio stopped Baldez after noticing that

Baldez was driving on the freeway without his headlights on. During the stop, Rubio observed

Baldez’s bloodshot eyes, slurred speech, and the odor of intoxicants on his breath. Baldez
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admitted to Rubio that he had been drinking.         Rubio then asked Baldez to perform three

Standardized Field Sobriety tests—the horizontal gaze nystagmus test, walk-and-turn test, and

the one-leg-stand test. Baldez exhibited signs of intoxication on each test. Thereafter, Rubio

placed Baldez under arrest. Rubio transported Baldez to the magistrate’s office and requested a

breath specimen. Baldez agreed, and the intoxilyzer results were .165 at 12:06 a.m. and .170 at

12:09 a.m. Baldez was charged with driving while intoxicated.

        At trial, Baldez attempted to question Rubio about his disciplinary history with the San

Antonio Police Department (SAPD). Rubio admitted that he had been disciplined by the SAPD.

The trial court, however, prohibited further questioning, stating that disciplinary proceedings are

not public record and that Rubio could not be forced to testify regarding his disciplinary history.

The next day, Baldez made a formal bill of exception and the trial court admitted a copy of the

agreed suspension for purposes of appeal. The suspension indicates that Rubio was placed on

unpaid leave for a period of 25 days in 2007. Baldez argued that the suspension went to the

veracity and credibility of Officer Rubio.

        At the conclusion of the trial, the jury found Baldez guilty of driving while intoxicated.

The trial court assessed a punishment of 180 days in the Bexar County Jail, suspended and

probated for a period of eight months, plus a $500 fine and court costs. Baldez now appeals,

arguing the trial court erred in failing to allow him to impeach Rubio concerning his disciplinary

suspension. He also contends the State violated his federal right to due process by failing to

disclose exculpatory evidence, i.e., the disciplinary suspension. Baldez additionally argues that

the trial court erred in denying his motion to suppress based on lack of reasonable suspicion to

stop.




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                                            DISCUSSION

Motion to Suppress

       We first address Baldez’s contention that the trial court erred in denying his motion to

suppress because his arrest was not supported by probable cause. We review a trial court’s

ruling on a motion to suppress under an abuse of discretion standard, giving almost total

deference to the trial court’s determination of historical facts and reviewing its application of the

law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Generally, a

police officer’s decision to stop a car is reasonable when the officer has probable cause to believe

that a traffic violation has occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000)

(citing Whren v. United States, 517 U.S. 806, 810 (1996)). With an objectively valid reason for a

traffic stop, the constitutional reasonableness of the stop does not depend on the actual

motivations of the officer. See Whren, 517 U.S. at 813.

       The Texas Transportation Code provides that “[a] vehicle shall display each lighted

lamp . . . required . . . to be on the vehicle . . . at nighttime.” TEX. TRANSP. CODE ANN.

§ 547.302(a)(1) (West 2011). Officer Rubio testified that he stopped Baldez because he saw him

drive his car without activating the headlights. The evidence showed that it was nighttime and

Baldez drove his car on a street without its headlights illuminated. Any subjective motives of

Officer Rubio for the stop are not relevant. See Whren, 517 U.S. at 813. Accordingly, the

evidence supports the trial court’s conclusion that Officer Rubio’s detention of Baldez was

reasonable. See Walter, 28 S.W.3d at 542; see also Williams v. State, No. 04-02-00747-CR,

2003 WL 21658529, at *1 (Tex. App.—San Antonio July 16, 2003, pet. ref’d) (not designated

for publication, mem. op) (officer had right to stop and detain appellant for committing traffic

offense of driving with only one headlight at night); Laws v. State, No. 01-09-00431-CR, 2010



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WL 2133925, at *2 (Tex. App.—Houston [1st Dist.] May 27, 2010, no pet.) (not designated for

publication, mem. op) (reasonable suspicion existed for officers to stop and detain appellant who

drove without headlights illuminated at night).      Because the trial court did not abuse its

discretion in denying the motion to suppress, we overrule Rubio’s second issue on appeal.

Excluded Evidence of Officer Rubio’s Prior Disciplinary Proceeding

       Baldez maintains the trial court erred in failing to allow him to cross-examine Officer

Rubio concerning his disciplinary suspension from the SAPD for violating department rules at a

crime scene by taking evidence and concealing such fact, and the evidence, from his superiors.

Baldez claims the excluded testimony indicates Rubio’s lack of credibility.

       The Sixth Amendment right of confrontation includes the right to cross-examine the

State’s witnesses. U.S. CONST. amend. VI; Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim.

App. 1996). Through cross-examination, a defendant can test the believability of a witness and

the truth of his testimony. Davis v. Alaska, 415 U.S. 308, 316 (1974). We review a trial court’s

decision to limit cross-examination under an abuse of discretion standard. See Hammer v. State,

296 S.W.3d 555, 561 (Tex. Crim. App. 2009). The trial court has “broad discretion to impose

reasonable limits on cross examination to avoid, inter alia, harassment, prejudice, confusion of

the issues, endangering the witness, and the injection of cumulative or collateral evidence.”

Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997); see also Delaware v. Van

Arsdall, 475 U.S. 673, 682 (1986). In evaluating whether a trial court erred in refusing to admit

specific evidence under a Confrontation Clause claim, courts balance the probative value of the

proffered evidence against the risk its admission may entail. See Lopez v. State, 18 S.W.3d 220,

222 (Tex. Crim. App. 2000).




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       The credibility of a witness may be attacked by opinion or reputation evidence, or by

proof of a conviction for a felony or a crime of moral turpitude. See TEX. R. EVID. 608(a);

609(a). Aside from proof of a conviction for a felony or a crime of moral turpitude, a witness’s

general character for truthfulness may not be attacked by evidence of specific instances of

conduct. TEX. R. EVID. 608(b). Specific instances of conduct may, however, be admissible for

the purpose of attacking a witness’s trustworthiness in a particular case because of bias or

interest. See TEX. R. EVID. 613(b). The appellant has the burden of showing the relevance of

particular evidence to the issue of bias or prejudice. Chambers v. State, 866 S.W.2d 9, 26-27

(Tex. Crim. App. 1993).

       Here, Baldez sought to introduce the disciplinary report for the sole purpose of showing

Rubio’s lack of credibility; Baldez never argued that Rubio was untrustworthy due to bias or

interest against Baldez.    See TEX. R. EVID. 613(b).        Rule 608(b) expressly prohibits the

introduction of specific instances of conduct to attack a witness’s credibility. TEX. R. EVID.

608(b). “[A]s the Supreme Court noted in Davis v. Alaska, there is an important distinction

between an attack on the general credibility of a witness and a more particular attack on

credibility that reveals ‘possible biases, prejudices, or ulterior motives of the witness as they may

relate directly to issues or personalities of the case at hand.’” Hammer, 296 S.W.3d at 562

(quoting Davis, 415 U.S. at 316). The Davis court cautioned that the Sixth Amendment does not

confer a right to impeach the general credibility of a witness through otherwise prohibited modes

of cross-examination. Hammer, 296 S.W.3d at 562 (emphasis original) (citing Davis, 415 U.S.

at 321 (Stewart, J., concurring)). Because Baldez sought to impeach Rubio’s credibility with




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proof of the disciplinary report, we conclude the trial court did not abuse its discretion in limiting

cross-examination. 1 We overrule Baldez’s first issue.

         Baldez also argues that his right to due process was violated when the State failed to

disclose Officer Rubio’s disciplinary suspension. Under Brady v. Maryland, 373 U.S. 83 (1963),

prosecutors have an affirmative duty to disclose all material exculpatory evidence to the defense.

         We disagree that a Brady violation exists in this case. To establish a Brady violation, the

defendant must show that (1) the State suppressed evidence, (2) the suppressed evidence favors

the defendant, and (3) “there is a reasonable probability that had the evidence been disclosed, the

outcome of the trial would have been different.” Hampton v. State, 86 S.W.3d 603, 612 (Tex.

Crim. App. 2002).          Here, the record does not reflect that Rubio’s disciplinary report was

withheld from Baldez. Although Baldez contends he did not receive Rubio’s records from the

Commission of Law Enforcement Officer Standards and Education until the second day of trial,

Baldez attempted to cross-examine Rubio concerning the report on the first day of trial, and then

made a bill of exception during which the report was admitted for purposes of appeal on the

second day of trial. Therefore, Baldez has not shown that the State suppressed the evidence. See

Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999) (Brady claim fails where evidence is

turned over in time for defendant to use it in his defense); see also Marchbanks v. State, 341

S.W.3d 559, 563-64 (Tex. App.—Fort Worth 2011, no pet.) (no Brady violation where defendant

became aware of withheld evidence during trial). In any event, as discussed above, evidence of

Rubio’s prior disciplinary proceeding was not admissible as impeachment evidence under Rule

608(b); thus, the prosecution had no duty to turn over the report. Lagrone, 942 S.W.2d at 615

(“[T]he prosecution has no duty to turn over evidence that would be inadmissible at trial.”).

1
 Although the trial court expressly limited cross-examination on grounds that the disciplinary proceeding was not
public record, we may affirm the trial court’s ruling if it is correct on any theory of law applicable to the case. See
Calloway v. State, 743 S.W.2d 645, 651-52 (Tex. Crim. App. 1988).

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       Even assuming the disciplinary report was admissible, Baldez has not shown that there is

a reasonable probability the outcome of the trial would have been different. See id. This was not

a case involving a “swearing match” between Baldez and Officer Rubio in which their versions

of events varied. See Lopez, 18 S.W.3d at 225 (defendant had heightened need to impeach

credibility of accuser where there was no corroborating evidence and trial amounted to a

“swearing match” between the two). As previously discussed, Rubio had probable cause to stop

Baldez for driving without illuminated headlights at night. Moreover, Rubio’s testimony that

Baldez appeared intoxicated based on his bloodshot eyes, slurred speech, and the odor of alcohol

emanating from his breath was corroborated by the results of the intoxilyzer test showing that

Baldez’s blood alcohol concentration was more than twice the legal limit. Given the other

uncontroverted evidence of his intoxication, Baldez cannot show how impeaching Rubio’s

character for truthfulness would have most likely produced a different outcome at trial. Because

Baldez cannot demonstrate that he meets the three-pronged Brady test, we conclude Baldez has

no basis on which to demand a new trial. Hampton, 86 S.W.3d at 612. Accordingly, we overrule

Baldez’s third issue.

                                         CONCLUSION

       Based on the foregoing, we affirm the judgment of the trial court.


                                                    Phylis J. Speedlin, Justice

PUBLISH




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