                              NUMBER 13-08-00416-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


EARL WILEY,                                                                       Appellant,

                                               v.

THE STATE OF TEXAS,                                                                 Appellee.


   On appeal from the 319th District Court of Nueces County, Texas.


                           MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Justice Benavides

       A jury found appellant, Earl Wiley, guilty of felony driving while intoxicated (“D.W.I.”),

enhanced by two prior D.W.I. convictions. See TEX . PENAL CODE ANN .§ 49.04(a) (Vernon

2008). Punishment was assessed by the court at ten years’ imprisonment, probated for

a period of five years, with no fine. Wiley appeals, contending that: (1) the court erred in

allowing an expert witness to testify; (2) the evidence was legally and factually insufficient

to support the verdict; and (3) the court erred in denying Wiley’s request for a jury
instruction on post-arrest statements. We affirm.

                                            I. BACKGROUND

        On September 1, 2006, Texas Department of Public Safety Trooper Randy Zarate

stopped Wiley after noticing that Wiley’s truck veered to the right about five times. At trial,

Trooper Zarate testified that he asked Wiley whether he had been drinking, and Wiley

answered that he had consumed four beers. During that interchange, Trooper Zarate

observed that Wiley had a strong smell of alcohol, slurred speech, and bloodshot eyes.

Wiley stated that he had picked up some new medication, named clonazepam,1 from the

Veterans Administration. Wiley told Trooper Zarate that he was “what you call inhibited,”

which Wiley explained at trial as an attempt to indicate to Trooper Zarate that he is bipolar,

had not recently taken his medications, and could be prone to react aggressively.

        Based on Wiley’s appearance and statement, Trooper Zarate administered several

field sobriety tests, including the horizontal gaze nystagmus, the walk and turn, and the

one-leg stand, which he used to conclude that Wiley was intoxicated.                                      On

cross-examination, Trooper Zarate stated that following these tests, he had the intention

of arresting Wiley. However, he did not arrest him. He continued to administer an on-site

breath test, which showed Wiley had a blood-alcohol concentration of 0.09. According to

Trooper Zarate, after the test, Wiley voluntarily stated that “he was over the legal limit.” No

objection to this statement by Trooper Zarate appears in the record.

        Trooper Zarate placed Wiley under arrest for D.W.I., secured the video of the arrest,

and took Wiley to jail. About an hour and a half after arriving, two additional breath tests

        1
          “Clonazepam is used to control certain types of seizures in the treatm ent of epilepsy and for the
treatm ent of panic disorders.” See Clonazepam, http://www.drugs.com /clonazepam .htm l (last visited Jun. 29,
2009).



                                                      2
were performed at the jail.          Wiley’s test results at the jail revealed blood-alcohol

concentrations of 0.069 and 0.065 (herein referred to as “Intoxilyzer 5000 results”).

       To explain the discrepancies between the on-site breath test and the breath tests

performed at the jail, the State called Roxana Lecocke, a forensic scientist employed as

the Technical Supervisor for the Breath Alcohol Testing program in Aransas, Nueces, and

San Patricio Counties. At the introduction of this witness, Wiley objected to her testimony,

stating that he was not given the statutorily required notice. Lecocke was allowed to testify

about the effects of alcohol on a person’s mental and physical faculties and that the breath

machine at the jail was working properly. Lecocke also explained that because the body

specifically absorbs, distributes, and eliminates alcohol in predictable patterns, the process

of retrograde extrapolation may be used to make a scientific estimate of a person’s blood-

alcohol concentration at the time of the incident based on a known blood-alcohol

concentration at some time after the incident.

       After Lecocke testified, Wiley testified in his own defense and admitted that the field

sobriety tests and breath tests were performed voluntarily. He also testified that the only

medication that he took that day was Levitra.2 He stated that he failed the field sobriety

tests due to his physical disabilities. Wiley was found guilty of felony D.W.I., and the trial

court assessed his punishment. This appeal ensued.

                                     II. ABUSE OF DISCRETION

       By his first issue, Wiley contends that the trial court erred in allowing an expert

witness to testify.



       2
          Levitra is a prescription m edicine that is used to treat erectile dysfunction.   See Levitra,
http://www.levitra.com / (last visited Jun. 29, 2009).

                                                   3
A.     Standard of Review and Applicable Law

       Article 39.14 of the Texas Code of Criminal Procedure provides, in relevant part:

       On motion of a party and on notice to the other parties, the court in which an
       action is pending may order one or more of the other parties to disclose to
       the party making the motion the name and address of each person the other
       party may use at trail to present evidence under Rules 702, 703, and 705,
       Texas Rules of Evidence. The court shall specify in the order the time and
       manner in which the other party must make the disclosure to the moving
       party, but in specifying the time in which the other party shall make
       disclosure the court shall require the other party to make the disclosure not
       later than the 20th day before the date the trial begins.

TEX . CODE CRIM . PROC . ANN . art. 39.14(b) (Vernon Supp. 2008).

       We review a trial court’s decision to permit an undisclosed witness to testify under

an abuse of discretion standard. Horner v. State, 129 S.W.3d 210, 214 (Tex. App.–Corpus

Christi 2004, pet. ref’d). The factors considered by an appellate court are: (1) whether the

prosecutor acted in bad faith in failing to provide the defense with the name of the witness,

and (2) whether the defendant could reasonably anticipate the witness would testify despite

the State’s failure to disclose the witness’s identity. Id. at 214.

B. Discussion

       In his appeal, Wiley states that on November 1, 2007, he filed a Motion for

Discovery, which included a request for notification of experts. See TEX . CODE CRIM . PROC .

ANN . art. 39.14(b). Wiley asserts that the trial court granted his Motion for Discovery.

Wiley now argues that the court erred in allowing Lecocke’s testimony, in violation of article

39.14(b). Id. The State does not dispute that a Motion for Discovery was filed; rather, it

argues that the parties agreed to the State’s open-file policy and that under the agreement,

the parties asked the trial court not to rule on the motion or the discovery order.

       Contrary to Wiley’s argument, the record does not indicate that the Motion for

                                               4
Discovery was granted. Indeed, as the State suggests, the record shows only that, during

pre-trial proceedings, both parties agreed to the State’s open-file policy and asked the

court not to rule on Wiley’s Motion for Discovery. During pre-trial proceedings, the

following exchange took place:

       [State]:      A few motions, Judge, Motion for discovery initially.


       The Court:    Okay.


       [State]:      And we have agreed that defense counsel will rely on the
                     State’s open file policy. We would ask that you don’t rule on
                     each specific one yet. If there is anything extra that the
                     defense counsel would need, we’d bring that to the Court’s
                     attention and ask the court to rule on that.


       [Wiley]:      That’s correct, Your Honor. The D.A. has advised me that she
                     has provided me everything she has so far, and that’s fine. . . .


Wiley also notes that the trial court read the following statement into the record: “Motion

for discovery was agreed to by the state per the open-file policy,” and argues that the trial

court acknowledged granting the Motion for Discovery. The trial court, however, was not

reiterating what it had granted but was reading on the record what was provided to it in the

clerk’s record. This statement, set against the context of the pre-trial transcript, clearly

shows that the trial court did not grant the motion. The Motion for Discovery was filed, but

no ruling was obtained.

       In the absence of a ruling on the motion, the court may, in its discretion, allow an

unlisted witness to testify. See Martinez v. State, 867 S.W. 2d 30, 39 (Tex. Crim. App.

1993). Wiley argues that the trial court abused its discretion by allowing Lecocke to testify

because the State acted in bad faith in not providing notice of the expert, specifically


                                             5
stating that it is unreasonable and unconscionable to require the defense to continuously

review the State’s file. The State, however, contends that it complied with the open-file

policy.

          The court records show that an application to subpoena Lecocke was filed on May

9, 2008. There is no evidence in the record showing that the State tried to hide the

application, nor is there any evidence that the State tried to deceive Wiley. Additionally,

there is no evidence that Wiley’s counsel availed himself of the State’s open-file policy.

Under the State’s open-file policy, there is no duty placed on the State to take additional

steps to provide notice of what is contained in the record. See Vega v. State, 898 S.W.2d

359, 362 (Tex. App.–San Antonio 1995, pet. ref’d) (holding that the State’s open-file policy

was sufficient to satisfy Brady v. Maryland, 373 U.S. 83, 87 (1963)). The record reveals

that Wiley was aware of the State’s open-file policy. In fact, as noted above, Wiley agreed

to it during pre-trial proceedings.

          The application for subpoena was not all the trial judge could consider in allowing

Lecocke’s testimony. Wiley’s Intoxilyzer 5000 results were also admitted into evidence.

At trial, Wiley used these results to argue that he did not meet the first prong of section

49.01(2)(A) of the penal code. See TEX . PENAL CODE ANN . § 49.01(2)(A) (Vernon 2008).

As the State suggests, the use of an expert witness to testify as to the meaning of the

Intoxilyzer 5000 results may be reasonably expected. Therefore, by accepting the State’s

open-file policy agreement, Wiley implicitly agreed that there was an obligation on his part

to review the file. Wiley cannot now argue that it is unconscionable to ask him to review

the State’s file. The trial court did not abuse its discretion when it held that the State’s

open-file policy, in conjunction with the subpoena, was sufficient notice of Lecocke’s

                                               6
testimony. We overrule Wiley’s first issue.

                            III. LEGAL AND FACTUAL SUFFICIENCY

       By his second issue, Wiley contends that the evidence was legally and factually

insufficient to support the verdict.

A.     Standard of Review

       In a legal sufficiency review, the court must examine all the evidence in the light

most favorable to the prosecution to determine whether any rational tier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Sanders v. State,

119 S.W.3d 818, 820 (Tex. Crim. App. 2003). In a factual sufficiency review, we view the

evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App.

2006). For an appellate court to order a new trial based on factual insufficiency, there must

be some objective basis in the record to support a conclusion that the jury’s verdict was

contrary to the great weight and preponderance of the evidence. Id.

B.     Discussion

       Wiley argues that there was insufficient evidence for the jury to have concluded that

he was intoxicated under the first and second prongs of section 49.01(2). TEX . PENAL

CODE ANN . § 49.01(2)(A),(B). Section 49.01(2) defines intoxication as “(A) not having the

normal use of mental or physical faculties by reason of the introduction of alcohol, a

controlled substance, a drug, a dangerous drug, a combination of two or more of those

substances, or any other substance into the body; or (B) having an alcohol concentration

of 0.08 or more.” Id.

       In his appeal, Wiley argues that the first prong of section 49.01 requires that

intoxication must be “by reason of the introduction of alcohol, and a controlled substance,”


                                              7
suggesting that the clauses are dependent upon another. Id. With such a reading, Wiley

argues that the State did not provide sufficient evidence to prove that Levitra and alcohol,

when mixed together, cause intoxication. However, the penal code does not use the

conjunctive “and,” but instead uses the disjunctive “or.” See id. § 49.01(2)(A); City of

Lubbock v. Adams, 149 S.W.3d 820, 827 (Tex. App.–Amarillo 2004, pet. denied) (holding

that “and” and “or” are usually not interchangeable.). A proper reading of the penal code

demonstrates that the introduction of alcohol independently may satisfy the definition of

intoxication.

        Next, Wiley also argues that the State failed to prove he was intoxicated under the

second prong of section 49.01(2). TEX . PENAL CODE ANN . § 49.01(2)(B). Wiley highlights

the fact that the two intoxilyzer results performed at the jail were both under the 0.08 limit,

and therefore, the State did not meet the elements of the second prong. However, the

portable breathalyzer used at the scene showed a blood-alcohol level of 0.09. Additionally,

Lecocke’s explanation of retrograde extrapolation3 could explain the discrepancies

between the on-site results and the results at the jail. The jury does not need to establish

Wiley’s exact blood-alcohol reading at the time of his arrest; they may use a police officer’s

testimony to prove a defendant’s intoxication. Emerson v. State, 880 S.W.2d 759, 763

(Tex. Crim. App. 1994). Additionally, the record includes the video tape showing Wiley

failing all three sobriety tests and his statements admitting to drinking four beers and being

above the legal driving limit.

        In the present case, significant evidence indicates Wiley’s intoxication: Trooper


        3
          Retrograde extrapolation is the process whereby a known concentration of alcohol taken som etim e
after an incident is used to determ ine the blood-alcohol concentration at the tim e of the incident. Bigon v.
State, 252 S.W .3d 360, 367 (Tex. Crim . App. 2008).

                                                      8
Zarate’s observations, Wiley’s admission of drinking four beers, the videotape wherein

Wiley fails all three sobriety tests, the on-site breathalyzer reading of 0.09, the results of

0.069 and 0.065 at the jail, and the retrograde extrapolation explanation provided by the

expert witness. A jury may use several different factors to infer that a person was

intoxicated. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim App. 2005) (noting that

intoxilyer results are probative without retrograde extrapolation evidence.); see Rodriguez

v State, 191 S.W.3d 428, 438 (Tex. App.–Corpus Christi 2006, pet. ref’d) (holding that

arresting officer’s observation sufficient to show intoxication.). Reviewing the evidence in

the light most favorable to the verdict, we hold that the evidence is such that a reasonable

fact finder could have found the element of intoxication beyond a reasonable doubt. See

Sanders, 119 S.W.3d at 820. Reviewing the evidence in a neutral light, we hold that the

evidence is such that a reasonable fact finder could have found the elements of

intoxication beyond a reasonable doubt and that the finding is not against the great weight

and preponderance of the evidence. See id. Accordingly, we overrule Wiley’s second

appellate issue.

                                 IV. JURY CHARGE ERROR

       By his third issue, Wiley argues that the court erred in denying his request for a jury

instruction on a pre-arrest statement.

A.     Standard of Review

       In reviewing a jury charge, the court must first examine if error exists. Middleton v.

State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If error is found, then we consider

whether an objection to the charge was made and determine whether harm occurred. Id.

If the defendant properly objected to the erroneous jury charge, reversal is required if we


                                              9
find “some harm” to the defendant’s rights. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.

App. 2005). If the defendant did not object, we may only reverse if the record shows

egregious harm. Id. at 743-44.

        On appeal, Wiley argues that Trooper Zarate’s intention to arrest him after the one-

leg sobriety test gave rise to a custodial interrogation and that the trial court erred by not

providing an article 38.23 instruction, which informs the jury that if any evidence was

obtained by a police officer illegally, it is to disregard that evidence. See TEX . CODE CRIM .

PROC . ANN art. 38.23 (Vernon 2005). However, as the State notes, at trial, Wiley requested

an article 38.22 section 7 instruction.4 See TEX . CODE CRIM . PROC . ANN art. 38.22 § 7

(Vernon 2005). Article 38.22 of the code of criminal procedure codifies both Miranda’s

system of protecting a suspect against self-incrimination and its distinction between

voluntary statements and compelled confessions. Id.; State v. Waldrop, 7 S.W.3d 836,

838 (Tex. App.–Austin 1999, no pet.); see also State v. Werlla, No. 13-08-00185-CR, 2008

Tex. App. Lexis 9109, at *10 (Tex. App.–Corpus Christi Dec. 4, 2008, no pet.) (mem. op.,

not designated for publication). If statements are not made as the result of custodial

interrogation, the requirements of Miranda and of article 38.22 do not apply. Waldrop, 7

S.W.3d at 839 (citing Holland v. State, 770 S.W.2d 56, 58 (Tex. App–Austin 1989), aff’d,

802 S.W.2d 696 (Tex. Crim. App. 1991)). For this reason and due to Wiley’s argument

under article 38.23, whether Wiley was under custodial interrogation is dispositive of this



        4
           W e do not reach the State’s waiver argum ent because we find that no error occurred. See Thomas
v. State, 723 S.W .2d 696, 707 (Tex. Crim . App. 1986) (“Therefore, whether appellant properly preserved any
asserted jury charge error will only be relevant should we find that error actually occurred. Because we find
that no error occurred, we need not decide whether appellant preserved any asserted jury charge error.”); see
also Pickens v. State, 165 S.W .3d 675, 680 (Tex. Crim . App. 2005); Salahud-din v. State, 206 S.W .3d 203,
209 n.3 (Tex. App.–Corpus Christi 2006, pet ref’d).



                                                    10
issue. Therefore, we will first determine whether he was under custodial interrogation, then

we will determine how that impacts Wiley’s jury charge complaint.

B.     Custodial Interrogation

       “Custodial interrogation” has been defined as questioning initiated by law

enforcement officers after a person has been taken into custody or deprived of his freedom

in any significant way. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Miranda safeguards

only apply when a suspect is placed in custody and interrogated by police. Rhode Island

v. Innis, 446 U.S. 291, 300 (1980). Two questions must then be resolved to determine the

need for Miranda warnings: (1) whether the accused is actually in custody, and (2) whether

there has been an interrogation.

       A defendant is generally not considered to be under custodial interrogation when

stopped for a traffic offense. See Berkemer v. McCarty, 468 U.S. 420, 441 (1984); State

v. Stevenson, 958 S.W.2d 824, 829 (Tex. Crim. App. 1997); Abernathy v. State, 963

S.W.2d 822, 825 (Tex. App–San Antonio 1998, pet. ref’d); Galloway v. State, 778 S.W.2d

110, 112 (Tex. App–Houston [14th Dist.] 1989, no pet.). But subsequent events may

cause a noncustodial encounter to escalate into a custodial interrogation. See Berkemer,

468 U.S. at 440; Dowthitt v. State, 931 S.W.2d 244, 254-55 (Tex. Crim. App. 1996).

       The Supreme Court has stated an interrogation is “express questioning [or] any

words or action on the part of the police . . . that the police should know are reasonably

likely to elicit an incriminating response.” Russell v. State, 215 S.W.3d 531, 535 (Tex.

App.–Waco 2007, pet. ref’d) (citing Rhode Island v. Innis, 446 U.S. 291 (1980)). Normal

questions incident to a traffic stop are not considered to be an interrogation. See

Berkemer, 468 U.S. at 437-438. The Texas Court of Criminal Appeals has identified four


                                            11
general situations that may amount to custody:

       (1) when the suspect is physically deprived of his freedom of action in any
       significant way, (2) when a law enforcement officer tells the suspect that he
       cannot leave, (3) when law enforcement officers create a situation that would
       lead a reasonable person to believe that his freedom of movement has been
       significantly restricted, and (4) when there is probable cause to arrest and
       law enforcement officers do not tell the suspect that he is free to leave.

Arthur v. State, 216 S.W.3d 50, 57 (Tex. App.–Fort Worth 2007, no pet.) (citing Dowthitt,

931 S.W.2d at 255.). Under the first through third situations, “the restrictions upon freedom

of movement must amount to the degree associated with an arrest as opposed to an

investigative detention.” Id. Under the fourth, the officer must have manifested his

knowledge of probable cause to the suspect. Id. “[S]ituation four does not automatically

establish custody; rather, custody is established if the manifestation of probable cause,

combined with other circumstances, would lead a reasonable person to believe that he is

under restraint to the degree associated with an arrest.” Dowthitt, 931 S.W.2d at 255.

Manifestation occurs “if information substantiating probable cause is related by the officers

to the suspect or by the suspect to the officers.” Id.

       In Arthur, the Fort Worth Court of Appeals recognized a situation in which a traffic

stop escalated into a custodial interrogation. See id. (citing Alford v. State, 22 S.W.3d 669,

672 (Tex. App.–Fort Worth 2000, pet. ref’d)). In Alford, the defendant was placed on the

ground and handcuffed without Miranda warnings prior to questioning. Id. Here, there is

no evidence, prior to the on-site breath test and subsequent statement, that Wiley was

restrained in any way similar to an arrest or that Trooper Zarate manifested his knowledge

of probable cause to him.      Thus, we conclude that Wiley was not under custodial

interrogation at the time he made the statements in question.

       1. Article 38.22 Section 7

                                             12
        Because Wiley’s statements [were] not made as the result of custodial interrogation,

the requirements of Miranda and of article 38.22 do not apply. Waldrop, 7 S.W.3d at 839.

        2. Article 38.23

        Arguing that he was not properly Mirandized prior to making the incriminating

statements, Wiley asserts that the trial court was required to give an article 38.23

instruction because a contested issue was raised regarding whether Wiley should have

been Mirandized. The Texas Code of Criminal Procedure article 38.23 provides in relevant

part:

        In any case where the legal evidence raises an issue hereunder, the jury
        shall be instructed that if it believes, or has a reasonable doubt, that the
        evidence was obtained in violation of the provisions of this Article, then and
        in such event, the jury shall disregard any such evidence so obtained.

TEX . CODE CRIM . PROC . ANN art. 38.23 (Vernon 2005).

        In other words, “in any case where a party raises an issue regarding whether

evidence was obtained in violation of the laws of Texas or the United States, the jury shall

be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained

because of such a violation, then the jury shall disregard any such evidence.” Mendoza

v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002). “When there is no conflicting

testimony regarding the relevant facts, no jury instruction is required.” Estrada v. State, 30

S.W.3d 599, 605 (Tex. App.–Austin 2000, pet. ref’d) (citing Lackey v. State, 638 S.W.2d

439, 455 (Tex. Crim. App. 1982)). “The only question, then, is whether, under the facts

of a particular case, the evidence raises an issue under article 38.23.” Murphy v. State,

640 S.W.2d 297, 299 (Tex. Crim. App. 1982). “Where no such issue is raised by the

evidence, the trial court acts properly in refusing a request to charge the jury.” Id.

        After reviewing the record, we find that there is no conflicting testimony regarding

                                             13
the relevant facts and, therefore, no jury instruction was required. Estrada, 30 S.W.3d at

605 (citing Lackey, 638 S.W.2d at 455). Wiley did not call any witnesses to controvert the

point that the statement was made while under custodial interrogation or that it was not

voluntary. Having already concluded that Wiley was not under custodial interrogation at

the time the statement was made to Trooper Zarate, we also conclude that the statement

was not illegally obtained, and Wiley did not raise a fact issue on this point. Therefore,

Wiley was not entitled to an article 38.23 jury instruction. See TEX . CODE CRIM . PROC . ANN

art. 38.23; Murphy, 640 S.W.2d at 299; see also Simon v. State, No. 11-00-00004-CR,

2000 WL 34233654, at *2 (Tex. App.–Eastland Nov. 30, 2000, no pet.) (not designated for

publication) (“Because there was no custodial interrogation of appellant, he was not entitled

to an Article 38.23 jury instruction.”). The trial court did not err in refusing to give such an

instruction. See Murphy, 640 S.W.2d at 299. We overrule Wiley’s third issue.

                                       V. CONCLUSION

       Having overruled Wiley’s three issues, we affirm the judgment of the trial court.




                                                           GINA M. BENAVIDES,
                                                           Justice

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

Memorandum Opinion delivered and
filed this the 13th day of August, 2009.




                                              14
