                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
 THE STATE OF TEXAS,                                             No. 08-12-00268-CR
                                                 §
                        Appellant,                                   Appeal from
                                                 §
 v.                                                          Criminal District Court No. 1
                                                 §
 ARMANDO PRIETO, JR.,                                         of El Paso County, Texas
                                                 §
                        Appellee.                               (TC # 20120D01012)
                                                 §

                                           OPINION

       In its sole point of error, the State of Texas complains that the trial court abused its

discretion by granting Armando Prieto, Jr.’s, motion to suppress evidence based on the legality

of a traffic stop. For the reasons that follow, we affirm.

                                     FACTUAL SUMMARY

       Following a traffic stop in February of 2012, El Paso Police Department Officer Jose

Alvarez arrested Armando Prieto, Jr. for driving while intoxicated and possession of cocaine.

According to Officer Alvarez, the basis for the traffic stop was Prieto’s failure to use a turn

signal before making an abrupt lane change that nearly caused a collision between Prieto’s and

Alvarez’s vehicles.    See TEX.TRANSP.CODE ANN. § 545.104(a)(West 2011).             Once Officer

Alvarez stopped Prieto and made contact with him, he observed what he considered to be signs

that Prieto was intoxicated. After subjecting Prieto to various roadside sobriety tests, Officer
Alvarez placed him under arrest for driving while intoxicated. Incident to the arrest, Officer

Alvarez searched Prieto’s person and discovered what he believed to be illegal narcotics.

         Officer Alvarez then booked Prieto into jail and administered a breath test, which showed

Prieto to have a blood alcohol concentration of 0.011. In the arrest report however, Officer

Alvarez mistakenly indicated that the test result was significantly higher: 0.11. According to

Prieto, the State ultimately dropped the DWI charge. Regardless, the State does not rely on the

DWI arrest as a justification for the search, but argues instead that Officer Alvarez had lawful

authority to arrest Prieto for the turn signal violation.1

         Prieto’s motion to suppress challenged the lawfulness of both the traffic stop and his

arrest. At the suppression hearing, the State called Officer Alvarez as its only witness and played

a video he recorded during the stop. Both sides relied on the video during their examination of

Alvarez, but it was not formally offered or admitted into evidence. The trial court granted

Prieto’s motion to suppress and entered findings of fact and conclusions of law. Among other

things, the court found that Officer Alvarez’s testimony lacked credibility, and that Prieto had no

time to signal his lane change because Officer Alvarez was approaching him quickly from

behind. The court concluded that Officer Alvarez had no legal basis to stop Prieto and no

probable cause to arrest him, and it suppressed all evidence in the case.

         Approximately three weeks later, another hearing was conducted during which the State

formally offered the video into evidence. Prieto objected that the video had not been offered or

admitted into evidence at the suppression hearing, and that it was unclear whether it was indeed

the same video. The court sustained Prieto’s objections.

1
   An otherwise valid search incident to arrest will be upheld as long as there was probable cause to arrest the
defendant for some offense, even if it was not the actual reason the officer arrested the defendant. State v. Morales,
322 S.W.3d 297, 300 (Tex.App.--Dallas 2010, no pet.). See also Williams v. State, 726 S.W.2d 99, 100-01
(Tex.Crim.App. 1986)(holding proper a search of defendant’s person because officer possessed probable cause to
arrest defendant on previously observed parking violation).

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                                   MOTION TO SUPPRESS

       The State’s sole issue on appeal is whether the trial court abused its discretion by

granting Prieto’s motion to suppress. Its arguments are entirely dependent upon the video of the

stop, which it urges constitutes conclusive and indisputable proof that Prieto committed a traffic

violation that justified his arrest and search. Along these lines, the State maintains its brief that

“if the only evidence of the appellee’s traffic violation was the testimony of [Officer] Alvarez,

then the State would not even have attempted to appeal the trial court’s ruling.” Nonetheless, the

State does not challenge the trial court’s decision not to admit the video, and the video is not in

the appellate record.

                                       STANDARD OF REVIEW

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

standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Guzman v.

State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We give almost total deference to a trial

court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor, as well as wholly legal conclusions.

Guzman, 955 S.W.2d at 89; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005); and

Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002). The deferential standard of

review set out in Guzman “also applies to a trial court’s determination of historical facts when

that determination is based on a videotape recording admitted into evidence at a suppression

hearing.”   Amador, 221 S.W.3d at 673, quoting Montanez v. State, 195 S.W.3d 101, 109

(Tex.Crim.App. 2006).




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                                VIDEO NOT IN THE RECORD

        An appellate court can assess only the evidence that is actually in the appellate record.

Amador, 221 S.W.3d at 673, citing Rowell v. State, 66 S.W.3d 279, 282 (Tex.Crim.App. 2001).

Amador concerned the inclusion of a police video in an appellate record. Id. at 670. Although

the video was not formally introduced or accepted into evidence, the parties nonetheless relied

on it during a motion to suppress hearing. Id. at 669, 676. When Amador appealed, the video

was not included in the reporter’s record. The State sought to supplement the record with the

video, to which Amador objected on the basis that the trial court did not view the video in its

entirety.   Id. at 676.     The appellate court agreed with Amador and did not permit

supplementation. Id. at 668. It then proceeded to rule, however, by assuming that the video

supported the trial court’s determination in favor of reasonable suspicion. Id. The Court of

Criminal Appeals held that the court erred by basing its decision on evidence that was not before

it. Id. at 675. “[R]eviewing courts cannot ‘assume’ or speculate about the contents of exhibits or

other materials that are not contained in the appellate record.” Id.

        The high court additionally held that the court of appeals was “mistaken” to deny the

State’s supplementation request. Id. at 677. Here, however, the State did not seek to supplement

the appellate record with the video, despite the fact that it was plainly aware of its absence.

Consistent with Amador, we cannot conduct appellate review of arguments based on evidence

that is not within the appellate record. The State offers no argument that we can review the trial

court’s ruling without the video, and Prieto has not agreed to appellate review on stipulated facts.

While TEX.R.APP.P. 34.6(d) permits a court to direct the supplementation of a record on its own

motion, we decline to do so here, where the video’s absence was clearly known to the parties,

both of whom elected nevertheless to proceed. See State v. Schlemeyer, No. 12-07-00067-CR,



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2008 WL 2122539, at *2 (Tex.App.--Tyler, May 21, 2008, no pet.)(mem. op.)(not designated for

publication)(holding that sua sponte supplementation of record with police video “would

frustrate the strategic choices made by the parties” where parties knew video was missing and

chose to proceed anyway); and Blanton v. State, No. 12-07-00163-CR, 2008 WL 2514398

(Tex.App.--Tyler June 25, 2008, no pet.)(mem. op.)(not designated for publication)(holding

same).

                             NO CHALLENGE TO EXCLUSION OF VIDEO

         The State cites several cases in which evidence not formally offered or admitted into

evidence but nonetheless relied on and considered in the trial court was held to have been

constructively admitted.2 These cases are distinguishable. The State did formally offer the video

into evidence and the trial court expressly refused to admit it. None of the State’s cases address

such circumstances. Further, the State does not present us with any authority suggesting that the

trial court’s refusal to admit the video was invalid or improper. In fact, the State presents no

challenge of that ruling whatsoever. Accordingly, the validity of the trial court’s refusal to admit

the video for purposes of the suppression hearing is not before us. TEX.R.APP.P. 38.1(f).

         The appealing party generally has the burden to present a record showing reversible error.

See Word v. State, 206 S.W.3d 646, 651-52 (Tex.Crim.App. 2006). Because the State has

elected to proceed without the video, we are unable to review the trial court’s determinations.

We overrule the sole point and affirm the judgment of the trial court.




2
   See Cornish v. State, 848 S.W.2d 144, 145 (Tex.Crim.App. 1993); Heberling v. State, 834 S.W.2d 350, 355-56
(Tex.Crim.App. 1992); Killion v. State, 503 S.W.2d 765, 766 (Tex.Crim.App. 1973); Kissinger v. State, 501 S.W.2d
78, 79 (Tex.Crim.App. 1973); and Richardson v. State, 475 S.W.2d 932, 933 (Tex.Crim.App. 1972).


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May 30, 2014
                                    ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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