Nicole Diane Ebert v. the State of Texas

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-25-00113-CR

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NICOLE DIANE EBERT, Appellant V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 9th District Court Montgomery County, Texas

Trial Cause No. 24-01-01083

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MEMORANDUM OPINION

Nicole Diane Ebert appeals her conviction for driving while intoxicated third or more. Tex. Penal Code Ann. § 49.09(b). In seven issues, Ebert complains that: (1) the trial court erred in denying her motion to suppress certified judgments under Code of Criminal Procedure article 39.14; (2) the trial court erred in declining to exclude at punishment a witness’s testimony as a sanction for an alleged discovery and Brady violation; (3) the trial court erred in placing the burden of proof on the

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defendant in a suppression hearing; (4) the trial court erred in denying Ebert’s motion to suppress evidence obtained as a result of a traffic stop; (5) the trial court abused its discretion by denying Ebert’s motion to suppress blood evidence by finding that Ebert did not meet her burden of proving that the warrant was invalid for lack of an oath; (6) the trial court misapplied the law by treating the officer’s signature on the search warrant affidavit as a belated oath that could validate the warrant; and (7) the trial court erred in denying Ebert’s request for an article 38.23 jury charge instruction. For the reasons discussed below, we affirm the trial court’s judgment.

Background

Ebert was indicted for driving while intoxicated third or more. The indictment alleged that on or about January 19, 2024, Ebert operated a motor vehicle in a public place while intoxicated. The indictment further alleged:

And it is further presented in and to said Court that, prior to the commission of the foregoing offense, on June 7, 2006, in Cause Number 1347424 in the County Criminal Court at Law #15 of Harris County, Texas, the defendant was convicted of an offense relating to the operating of a motor vehicle while intoxicated; and on July 30, 2018, in Cause Number 2216897 in the County Criminal Court at Law #8 of Harris County, Texas, the defendant was convicted of an offense relating to the operating of a motor vehicle while intoxicated[.]

During the evening of January 19, 2024, Officer Jeremy Baker with the Conroe Police Department was working the “safety shift” and came into contact with Ebert’s vehicle on the I-45 southbound feeder road. Baker observed the vehicle traveling sixty-seven miles per hour in a forty-five mile-per-hour zone. He observed

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the vehicle slow down as it drove on the entrance ramp to get on the main lanes of the freeway. Baker followed her vehicle onto the main lanes of the freeway and observed the vehicle swerve from left to right within its lane, weave into an adjoining lane, cross a solid line onto the shoulder, and follow a slow-moving vehicle too closely. Based on his combined observations, Baker suspected the driver of the vehicle was intoxicated. Baker stopped the vehicle and identified the driver of the vehicle as the defendant.

When Baker approached Ebert’s vehicle, he noticed an odor of an alcoholic beverage and observed an open wine bottle on the floorboard. Ebert told Baker that she was coming from Spring and going to her home in The Woodlands, although she was already north of, and traveling away from, The Woodlands. Ebert denied drinking alcohol. Baker then drove Ebert to a nearby gas station to perform standardized field sobriety tests.

Baker administered the horizontal gaze nystagmus test and observed all six clues indicating intoxication. He observed five of eight clues on the walk-and-turn test. On the one-leg stand test, Baker observed one of four clues. Baker concluded that Ebert was operating a vehicle while intoxicated and placed her under arrest.

Baker requested Ebert’s consent for a blood draw, but she refused. After seeing the open container of the wine bottle, Baker searched Ebert’s vehicle incident to the DWI arrest and found a second, unopened bottle of wine. Because Ebert did

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not consent to the blood draw, Baker obtained a search warrant, and after the blood draw was conducted at the hospital, Baker drove Ebert to the jail. A forensic scientist with the Department of Public Safety testified that Ebert’s blood sample contained 0.138 grams of alcohol for 100 milliliters of blood.

David Stovall, an investigator with the Montgomery County District Attorney’s Office, prepared a fingerprint card with Ebert’s fingerprints in the courtroom and found that they matched the fingerprints on several judgments of conviction. Guilt-stage exhibits revealed that Ebert was convicted of DWI in Harris County in 2005 and again in 2018. The jury found Ebert guilty and sentenced her to four years in prison.

Issues

Issue One: Motion to Suppress Certified Judgments In her first issue, Ebert complains that the trial court erred in denying her motion to suppress certified copies of judgments reflecting Ebert’s previous convictions for DWI. Ebert argues the certified judgments should have been excluded under article 39.14(a) of the Code of Criminal Procedure and pursuant to the trial court’s standard discovery order because the State failed to deliver the certified copies of the judgments prior to trial, she argues the trial court abused its discretion in declining to exclude the exbibits as a sanction for their late production.

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The trial court’s “Standing Discovery Order” required the State to furnish inspection of “All records of convictions which may be admissible in evidence or impeachment of the defendant.” The order required that the items be furnished for inspection and copying “on or before 21 days before trial[.]” A grand jury indicted Ebert on March 19, 2024, and the indictment listed two convictions for jurisdictional enhancement purposes. On October 18, 2024, Ebert’s defense counsel filed a written motion for discovery that asked the State to “provide written notice, at least ten days before the start of trial, of its intent to use any evidence or testimony regarding the matters described in Rules 404(b) and 609(f) of the Texas Rules of Evidence and Article 37.07 of the Code of Criminal Procedure.”

The “eDiscovery Audit Log” indicates that on October 22, 2024, the State uploaded to its discovery portal documents described as “DWI 1ST JUDGMENT” and “DWI 2ND JUDGMENT[.]” The log reflects that Ebert’s counsel viewed these judgments via the discovery portal on October 28, 2024. The State also uploaded a document entitled “REPORT- DPS DWI 2ND & ASSLT ON PEACE OFFICER (2014)” which was viewed by Ebert’s defense counsel on October 28, 2024.

On January 8, 2025, the trial court set the case for trial to start on March 24, 2025. On February 13, 2025, the State notified Ebert in writing of its intent to offer evidence under article 37.07, listing all four of Ebert’s prior convictions, including the two Harris County DWI convictions described in the indictment, and Ebert’s

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2015 Montgomery County convictions for DWI and assault. The written notice identified the prior convictions by offense, date of conviction, court, and cause number.

On the first day of trial, March 24, 2025, the State obtained and shared certified copies of Ebert’s two prior DWI convictions which are alleged as jurisdictional enhancements in the indictment. The judgments and sentences were shared in jury selection and then later that night after the jury was sworn and trial had begun. The judgments were uploaded to the electronic portal discovery at 7:32 P.M. on March 24, 2025.

The next day, Ebert moved to suppress the certified copies of the judgments and sentences because they were released to her after trial had begun, in violation of the standing discovery order and her article 39.14 request. Ebert’s counsel argued that the untimely disclosure was prejudicial because it affected her ability to create her defense. At the hearing on the motion, Ebert’s counsel admitted receiving Ebert’s criminal history and non-certified copies of the judgment more than twenty-one days before trial. The trial court denied the motion to suppress the certified copies of the judgments. Ebert moved for a continuance, which the trial court denied.

Two days later, on March 27, 2025, the trial court admitted into evidence over objection the certified copies of the judgments reflecting Ebert’s 2006 and 2018 DWI convictions that were alleged in the indictment. After the conclusion of the

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guilt stage of the trial, Ebert renewed her request to suppress the certified copies of the 2015 judgments, arguing that the State provided notice only that it intended to put on evidence regarding the judgments but not that it intended to introduce the actual judgments and sentences. The trial court noted that Ebert’s counsel had been provided Ebert’s full criminal history in October 2024 and that she was notified of the State’s intent to introduce evidence of her 2015 convictions in February 2025. The trial court denied Ebert’s motion to exclude the certified copies of the 2015 judgments. On March 28, 2025, certified copies of the judgments for the 2015 convictions were admitted into evidence without further objection.

“We review a trial court’s decision to exclude evidence under an abuse of discretion standard.” State v. Heath, 696 S.W.3d 677, 688 (Tex. Crim. App. 2024). We may not substitute our own decision for that of the trial court. Id. at 689. We will not overturn the trial court’s decision unless its ruling is outside the zone of reasonable disagreement. Id.

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

[A]s soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books,

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accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.

Tex. Code Crim. Proc. Ann. art. 39.14(a). Article 39.14(a) imposes a duty upon the State to produce discovery materials “as soon as practicable after receiving a timely request from the defendant[.]” Id. When the State willfully violates article 39.14, the trial court may exclude the evidence at issue as a “court-fashioned sanction for prosecutorial misconduct[.]” In re State, 605 S.W.3d 721, 726 (Tex. App.—Houston [1st Dist.] 2020, orig. proceeding) (quoting Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014)). However, as the Court of Criminal Appeals recently held in Heath, exclusion is not an automatic remedy. Instead, the trial court has the inherent authority to fashion a remedy to control its docket. Heath, 696 S.W.3d at 703, 707-09.

In Heath, the Court of Criminal Appeals affirmed a trial court’s decision to exclude an exhibit which had been in the possession of a law enforcement agency for seventeen months but was disclosed to the defense six days before trial. Id. at 702-03. The Court held that “it might have been better practice for the trial court to grant even a short recess[]” to allow the defense to prepare for the admission of the evidence, but “the trial court was within its authority to reject the State’s argument for a continuance.” Id. at 708. The Court noted:

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The State maintains that the appropriate remedy for an untimely disclosure to allow defense counsel more time to review the recently disclosed evidence. We acknowledge that a continuance would be a much more restrained solution. But that’s not the question before us.

The question before us is whether the trial court had the authority to impose the remedy it did. That the trial court could have imposed a lesser remedy, assuming the formal requirements for a continuance were met, does not mean the trial court abused its discretion by excluding the evidence in this case. It may very well be that reasonable jurists could disagree about the appropriate remedy in a particular case, but unless the trial court’s decision is outside the zone of reasonable disagreement, this Court will not overturn its ruling. We agree with the court of appeals that the trial court was within its discretion to fashion a remedy it deemed appropriate.

Id. at 707-08.

Having reviewed the record, we cannot conclude that the trial court abused its discretion in refusing to exclude the certified judgments based on the State’s untimely disclosure. Here, Ebert had notice from the date she was charged in January 2024 that the State intended to offer evidence of her Harris County DWI convictions. Ebert additionally had notice more than a month before trial of the State’s intent to offer punishment stage evidence of the 2015 Montgomery County convictions. Importantly, the State provided the defense non-certified copies of the judgments in October 2024, and the discovery log shows that defense counsel viewed these judgments on October 28, 2024.

Ebert asserts that the late disclosure of the certified judgments prevented her from developing a trial strategy, such as whether to plea. Ebert has not identified a trial strategy or a plea that was lost as a result of not having received certified copies

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of judgments any earlier than she did. Without more, Ebert’s arguments are too general and hypothetical to show actual harm. Ebert’s motion for discovery did not ask for certified copies of the judgments. By producing non-certified judgments in discovery and certified judgments on the first day of trial, it does not appear that the State engaged in willful misconduct that would justify the exclusion of evidence as a discovery sanction. See id. at 704, 708 (citing Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978)). Because the trial court did not abuse its discretion by admitting the certified judgments, we overrule Ebert’s first issue.

Issue Two: Testimony of Punishment-Stage Witness In her second issue, Ebert complains that the trial court erred in allowing Trooper Brad Reece to testify during the punishment stage about Ebert’s 2014 arrest for DWI and assault on a peace officer because the State failed to provide Ebert’s current counsel, prior to trial, a copy of Reece’s video recording of the incident. Ebert alleges the recording constituted “mitigation and impeachment” under article 39.14 and Brady because it allegedly shows Reece choking Ebert.

Before Reece could testify about the May 29, 2014 incident, Ebert objected and asked to approach. Ebert complained that under Brady, the State failed to turn over a body camera’s recording of the incident. The State responded that it gave notice of intent to present the evidence and produced an offense report from the incident. The State claimed it did not possess the video and was unaware whether

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Ebert made a specific request for the video. Moreover, the State stated there was an active destruction order in this case. The trial court denied Ebert’s motion based on the destruction order but stated that “we’ll see where it goes from here, which means get into it prior to getting into it.”

A short time later, Ebert’s counsel approached and told the trial court that there was no destruction order in this case and that Ebert’s “previous counsel was able to obtain the video somehow through the DA’s office, so this in-car video exists and they have not turned it over.” The trial court asked the State to confirm the destruction of the recording and directed the State to call another witness in the interim.

After the other witness testified, Ebert’s counsel announced that the State had found a file containing the video recording. Ebert’s counsel made a motion to exclude Reece from testifying because “we have not had all of the evidence we need in order to prepare to cross-examine the State’s punishment witness and it would be – the Defense would be prejudiced.” The State explained that the State’s files for misdemeanor cases were destroyed after a certain retention period, but counsel had neglected to note the existence of a felony case with a longer retention period. An administrative assistant for the State found the “paper file” for the felony in the attic of the courthouse, with the misdemeanor file attached. The State argued that Reece should be permitted to testify because Ebert’s counsel knew of the existence of the

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recording and made no effort to obtain it. The State explained that a copy of the recording had already been provided to the law partner of Ebert’s previous counsel and that a prior attorney for the defendant told Ebert’s current counsel that a video exists.

Ebert’s counsel responded that she specifically requested in her October 18, 2024 discovery request “any exculpatory impeachment or mitigation document, item, or information in the possession, custody, or control of the State that tends to negate the guilt of the accused or would tend to reduce the punishment for the offense charge.” Ebert’s counsel renewed her motion to exclude the witness or in the alternative, motion for continuance to review the file, arguing that “it’s far more prejudicial to the Defense to allow this witness to testify when the State has had this discovery in their possession – in their possession the whole time.” Ebert’s counsel stated that she did not get the file from the previous attorney, but that she knew the video existed from her client.

The trial court announced at 1:30 p.m. that it was instructing defense counsel to watch the video and that the trial court would exclude the video. Once defense counsel watched the video, the trial court would allow Reece to testify. The trial court would also allow Ebert’s counsel to show the trial court any discrepancy between Reece’s testimony and what the recording showed.

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At 2:04 p.m., defense counsel stated that he was still reviewing the recording, that he had twenty-six minutes of footage left to view, and that he would find what he was looking for in the next five or ten minutes. The trial court instructed defense counsel to “keep watching.” At 2:15 p.m., defense counsel announced that he was still watching the video. The trial court stated for the record that it “gave ample amount of time” for defense counsel “to look at an exhibit that’s not going to be admitted.”

Reece then recounted how Ebert resisted arrest after she refused standard field sobriety tests. He described how after placing her under arrest and in the front seat of his vehicle, Ebert “pulled her arms around and then she proceeded to just scratch and claw at my arm and to a point to where I have a scar here still and caused me to bleed and scarred it up on me.” Ebert continued acting belligerent and refused consent to providing a sample of her breath or blood. Because Ebert was so belligerent, three additional troopers held her down. During the blood draw, Ebert had to be held down. After the blood draw, Ebert began flailing in the car and became belligerent again, so Reece had a Shenandoah officer transport her to jail in a vehicle equipped with a cage.

During cross-examination, Reece testified he did not recall Ebert’s repeatedly demanding her Miranda rights be read prior to her arrest, so the trial court excused the jury while Ebert refreshed Reece’s memory with the excluded video. Defense

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counsel then accused Reece of putting both of his hands around Ebert’s neck while putting her into the vehicle. Reece denied it, explaining that “it was more of a thumb going to the pressure point behind her ear to again, gain compliance of her, because she was kicking my door and banging at my door – and I didn’t want her to hurt herself or anyone else.” Defense counsel then showed Reece a screenshot from the excluded video recording, but Reece continued to deny having applied any pressure to Ebert’s throat.

A Brady violation occurs when the State suppresses, willfully or inadvertently, evidence favorable to the defendant. Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006); see also Brady v. Maryland, 373 U.S. 83, 87 (1963). To establish a Brady violation, a defendant must show that (1) the prosecutor failed to disclose evidence, (2) the evidence is favorable to the accused, and (3) the evidence is material. Harm, 183 S.W.3d at 406.

Prosecutors have a duty to learn of Brady evidence known to others acting on the State’s behalf in a particular case. Id. Brady does not require prosecutors to disclose exculpatory information that the State does not have in its possession and that is not known to exist. Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011); Harm, 183 S.W.3d at 407. Similarly, the State does not have a duty to disclose the information if the defendant was aware of the exculpatory evidence or could have accessed it from other sources. Pena, 353 S.W.3d at 810. Under Brady,

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“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.” U.S. v. Bagley, 473 U.S. 667, 682 (1985). A “reasonable probability” is one that undermines confidence in the outcome. Id.

Here, Ebert knew that the State possessed a copy of the video recording from her 2014 arrest, and so she was aware of the information. In fact, Ebert’s counsel knew to object to Reece’s testimony on the basis that the State had not turned over a body cam recording of the incident. Therefore, Ebert had prior knowledge of the existence of the recording. The evidence about which Ebert complains does not fall within the Brady rule. We overrule Ebert’s second issue.

Issue Three: Burden of Proof in Suppression Hearing In her third issue, Ebert complains that the trial court created reversible error when it placed the wrong burden of proof – clear and convincing – on the wrong party – the defendant – in a hearing on a motion to suppress the evidence obtained as a result of Baker’s traffic stop.

At the beginning of the motion to suppress hearing, Ebert refused to stipulate a warrantless arrest:

[Defense Counsel]: So we’re not going to stipulate that it was a warrantless arrest.

[Trial Court]: Was there a warrant? Do you think there was a warrant?

[Defense Counsel]: No, we’re just not gonna stipulate.

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[Prosecutor]: You’re not gonna stipulate – [Defense Counsel]: -- to it since it’s our motion.

[Trial Court]: Sure. Okay. So let’s – let’s play it out. All right. We will – it’s on the record that you do not stipulate to it being a warrantless arrest. All right.

The State argued that because the arrest was warrantless, and the State stipulated that it was warrantless, it was the State’s burden to prove probable cause, and the State needed to go first in the hearing. Ebert’s counsel disagreed, arguing that “we have not stipulated that it is a warrantless arrest, so it’s – we get to go first. That’s how it works.”

The trial court eventually agreed that Ebert could proceed first and noted that “[t]he burden of proof is on the defendant. The standard is clear and convincing.” The trial court asked the parties if there was “[a]ny disagreement there?” and neither party objected. Ebert then questioned Baker.

After hearing evidence from both Ebert and the State, the trial court made its ruling:

Based on the evidence I saw, based on the testimony that I heard, I’m gonna deny your motion to suppress the stop. I’m gonna find that there was probable cause under the code for speeding and probable cause for following too closely for him to make a traffic stop on this vehicle.

“To suppress evidence on an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption

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of proper police conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant.” Id. “Once the defendant has made this showing, the burden of proof shifts to the State where it is required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable.” Id. A preponderance of the evidence standard applies in a motion-to-suppress setting. York v. State, 342 S.W.3d 528, 543 (Tex. Crim. App. 2011).

“Where there is no stipulation, as in this case, the defendant must produce some evidence that the search or seizure was warrantless.” Glenn v. State, 475 S.W.3d 530, 536 (Tex. App.—Texarkana 2015, no pet.) Because Ebert did not stipulate that the arrest was warrantless, the trial court correctly allowed her to question the witness first as she had the initial burden of proof.

We agree with Ebert, however, that the trial court incorrectly indicated that the burden of proof was clear and convincing evidence. That said, even assuming without deciding that the trial court erred, we will not reverse the conviction unless the record reflects that Appellant’s substantial rights were affected. See Tex. R. App. P. 44.2(a); Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim. App. 2008); Jones v. State, 119 S.W.3d 766, 777 (Tex. Crim. App. 2003). The admission of evidence obtained in violation of the Fourth and Fourteenth Amendments is constitutional error. See Hernandez v. State, 60 S.W.3d 106, 106 (Tex. Crim. App. 2001)

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(discussing Fourth Amendment); Sears v. State, 91 S.W.3d 451, 453, 455 (Tex. App.—Beaumont 2002, no pet.) (characterizing violation of Fourteenth Amendment as constitutional error and requiring 44.2(a) analysis). Accordingly, under Rule 44.2(a) we must reverse the conviction unless we determine beyond a reasonable doubt that the trial court’s denial of suppression did not contribute to conviction or punishment. See Tex. R. App. P. 44.2(a). For the reasons discussed below, we conclude the error, if any, was harmless.

That said, the record shows that the trial court denied Ebert’s motion to suppress, not because Ebert failed to prove that the search was warrantless, but because the State met its burden to prove there was probable cause for the traffic stop. Implicit in the trial court’s ruling is a finding that Ebert met her burden— incorrectly elevated as it was—to prove that the arrest was made without a warrant. After the trial court made this implicit finding, the burden shifted to the State to prove an exception to the warrant requirement, and any further discussion of Ebert’s burden became moot. No harm to Ebert could have resulted from a finding that she met her burden of proof (even an erroneously high burden of proof) that the search and seizure was warrantless, thereby successfully shifting the burden to the State to prove probable cause. We conclude the trial court’s error was harmless. See Latimer v. State, 659 S.W.3d 135, 141 (Tex. App.—Beaumont 2022, no pet.). We overrule Ebert’s third issue.

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Issue Four: Motion to Suppress the Traffic Stop In her fourth issue, Ebert complains that the trial court erred in failing to suppress the traffic stop, arguing that Baker did not have reasonable suspicion that Ebert violated the Transportation Code or was driving while intoxicated. Ebert argues that Baker’s affirmative responses to questions on cross-examination asking whether Ebert was driving as a “normal” and a “sober” person would negate the statutory violations. She also claims that Baker’s “failure to stop Ms. Ebert immediately undermines the State’s claim of reasonable suspicion.”

We review rulings on motions to suppress using a bifurcated standard of review. Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018). In a hearing on a motion to suppress, “the trial judge is the sole trier of fact and judge of credibility of witnesses and the weight to be given to their testimony.” Id. at 190. When the trial court does not make any explicit findings of fact in making its ruling, the reviewing court “infers the necessary factual findings that support the trial court’s ruling if the record evidence (viewed in the light most favorable to the ruling) supports these implied fact findings.” State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). For that reason, we afford almost total deference to the trial court’s ruling when it hinges on findings of historical facts, particularly when it involves decisions about credibility and demeanor. Id. We apply this highly deferential standard “regardless of whether the trial court has granted or denied a

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motion to suppress[.]” By using this standard, we give the trial court’s ruling the strongest legitimate view of the evidence, and in the absence of explicit findings, we review the record to determine whether the evidence supports the trial court’s ruling denying the motion. Id.

“Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity.” Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015) (internal quotations omitted) (citation omitted). This test “is an objective one that focuses solely on whether an objective basis exists for the detention and disregards the officer’s subjective intent.” State v. Kerwick, 393 S.W.3d 270, 274 (Tex. Crim. App. 2013). A court determines whether reasonable suspicion exists based on “the totality of the circumstances” leading to the stop. Id.

Here, the trial court properly denied Ebert’s motion to suppress on the basis that Ebert committed the traffic violations of speeding and following too closely. Baker testified that he paced Ebert’s vehicle as it travelled sixty-seven miles per hour in a forty-five miles per hour zone on the I-45 feeder road. Furthermore, Baker observed Ebert following a slow-moving truck at a distance of three car lengths. Baker’s dash cam video corroborated his testimony that Ebert followed another vehicle too closely. Deferring to the trial court’s determination that Baker’s

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testimony was credible, we conclude the trial court did not abuse its discretion in denying Ebert’s motion to suppress the traffic stop. We overrule Ebert’s fourth issue on appeal.

Issues Five and Six: The Oath Requirement for the Search Warrant Affidavit In her fifth issue, Ebert complains that the trial court abused its discretion in denying her motion to suppress the blood evidence. Specifically, Ebert complains that the trial court erred in finding that Baker swore to the truth of his affidavit in support of the search warrant, thereby “disregarding the relevant evidence and basing its ruling on speculation rather than fact.” She complains that the trial court changed its rulings when there was no additional evidence for such a change in its ruling. In her sixth issue, Ebert alternatively argues that the trial court misapplied the law by treating Baker’s signature as sufficient and by speculating that a belated oath could validate the warrant.

In the hearing on the motion to suppress, Baker initially testified that he signed the incorrect line and that Gordon Dudley, an investigator with the District Attorney’s Office, called him to let him know. Baker testified that Dudley administered an oath to him. Baker did not recall the exact wording of the oath, but he testified “[t]hat I’m not lying on this.” Ebert argued that Baker’s body-worn camera of the recording of the events did not corroborate his testimony that he swore to the truth of the affidavit because on Baker’s body camera, there is no oath taken.

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Baker testified that he “took the oath on the phone in the back of the hospital.” Baker doesn’t remember what was said, but he responded, “Yes.” When defense counsel asked Baker if the oath was “before or after you fixed your mistake on this affidavit[,]” Baker responded, “So I made it, sent it to Dudley. He called me and said, ‘You messed up.’ Gave me the oath on the phone and then signed that new paper and sent it to me to review, and then I sent him the new copy.” Baker’s body camera from the hospital was admitted as Defense Appellate Exhibit 4.

Baker said that when he was on the phone with Dudley, he conveyed to Dudley that Baker was swearing that the affidavit was true. Baker believed that he was under oath and was subject to perjury if he said anything that was false when he signed the document. Baker’s body camera only recorded his side of the conversation, and Dudley’s side of the conversation was inaudible. When Baker sent the affidavit to Dudley, he was under the impression that he was under oath and that he was swearing an oath to Dudley as a peace officer. On Baker’s body camera, Baker can be heard telling another Conroe police officer at the hospital, “Dudley said he would just swear it over the phone and I said sweet.” Throughout Baker’s testimony, he consistently testified that he swore to the truth of the affidavit.

After hearing Baker’s testimony and arguments from Ebert and the State, the trial court denied Ebert’s motion to suppress the blood based on Ashcraft v. State, No. 03-12-00660-CR, 2013 WL 4516193 (Tex. App.—Austin Aug. 20, 2013, no

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pet.) (mem. op., not designated for publication). The trial court made a finding that “there is no support of [the warrant] being sworn via the telephone conversations that have been heard in this court, but the support comes from a conversation between the Conroe officers that are both at the hospital and that Dudley said that it could be sworn over the phone.”

When Baker’s testimony continued the following day, Baker testified that he asked Ebert for consent for a blood draw and Ebert refused. Ebert then re-urged her motion to suppress the warrant and the blood, arguing that a sworn affidavit is different from an oath. The trial court noted that it made a factual finding that Baker testified to taking an oath; that no oath was heard on the body camera; and that Baker made a reference to Dudley’s saying the oath could be done over the phone. The trial court denied Ebert’s motion. Ebert then asked for a continuance to subpoena Dudley to see if he administered the oath, and the trial court ordered the State to bring in Dudley.

Dudley testified that he has no independent recollection of giving Baker an oath over the phone on January 19, 2024. Dudley has administered the oath over the phone over a hundred times. He usually asks the affiant, “Does your signature indicate you’re swearing to the truth of the affidavit.” The defense attorney noted that it took Baker about 4.3 seconds to recite the oath. Dudley testified he requires some kind of affirmative response by the affiant. Dudley said that it did not appear

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that he administered the oath in the first phone call to Baker. Dudley agreed that after listening to both phone calls on Baker’s body camera, it “would be a fair assessment[]” that Dudley did not administer an oath over the phone “[s]olely from one side of the conversation[.]” Dudley added, “I can’t tell you for sure without having heard my side of it.” Dudley testified that his “signature indicates that I believed the officer acknowledged the solemnity and swore to the affidavit[]” and that he “would not have affixed my signature as the witness if I were not confident that Officer Baker had understood and acknowledged the solemnity of the affidavit he had signed.”

The State represented to Dudley that there was one additional phone call from the scene in this case which is not shown on Baker’s body camera. Dudley agreed that it was possible during that initial communication that Dudley indicated to the officer that he would be swearing him, especially with an officer whose voice he is able to recognize over the phone, such as Officer Baker. When the State played Baker’s body camera, near the fifty-minute mark, Dudley observed that he may have stated that he would take the officer’s signature as an oath, just before Baker responded, “Okay, sounds good.”

Officer Baker was recalled and testified that he believed the part on the body camera where Baker states, “All right, yeah” is when he affirmed to an oath. The trial court then made a finding of fact that there was a 9.11 second pause between

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the final conversation and Baker’s stating, “All right, yeah” on the body camera. The trial court also recalled that Dudley’s testimony “was that it was less than that for him to recite the oath.” The trial court initially stated that the burden of proof was clear and convincing but ultimately concluded that “preponderance of the evidence is the standard.”

The trial court overruled Ebert’s motion to suppress the blood. The trial court ruled that it “cannot say one way or the other what was being heard or said on the other line[]” and that “the only person in this courtroom who says that he had sworn off is under oath, and he is the only one who knows what was said on the other line.” The trial court also noted there was a 9.1 second delay and based on Dudley’s testimony of the time that it took for him to administer the oath, “it’s within that 9.1 seconds.” The trial court stated that it was “at 50/50, which is not the preponderance[.]”

“One of the most fundamental tenets of search and seizure law is that a search warrant must be supported by a probable-cause affidavit that is sworn ‘by oath or affirmation.’” Wheeler v. State, 616 S.W.3d 858, 863 (Tex. Crim. App. 2021) (quoting Tex. Const. art. I, § 9). “This oath or affirmation requirement is so critical that our Legislature codified it numerous times in the Texas Code of Criminal Procedure.” Id. (citing six provisions of the Code, including art. 18.01(b), “A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in

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every instance in which a search warrant is requested.”). “[I]t is well established under Texas law that a search warrant cannot properly issue without a probable- cause affidavit made under oath.” Id. at 864.

“An oath is any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully.” Id. (internal quotations omitted) (quoting Vaughn v. State, 177 S.W.2d 59, 60 (Tex. Crim. App. 1943)). “Texas law has always required that the oath must be made ‘before’ or in the presence of another to convey the solemnity and critical nature of being truthful.” Id. (quoting Clay v. State, 391 S.W.3d 94, 98–99 (Tex. Crim. App. 2013)). Indeed, the Court of Criminal Appeals “has held for the better part of a hundred years that, before a written statement in support of a search warrant will constitute a ‘sworn affidavit,’ the necessary oath must be administered ‘before’ a magistrate or other qualified officer.” Clay, 391 S.W.3d. at 99 & n.18 (collecting cases dating back to 1929).

The Court of Criminal Appeals recognizes that “certain types of procedural irregularities may not affect the validity of a search warrant,” but it has been “unwavering in emphasizing that the oath requirement is essential.” Wheeler, 616 S.W.3d at 864. “Thus, an officer’s failure to take the oath and swear to the facts of his probable-cause affidavit renders defective any search warrant issued on the basis of the unsworn probable-cause affidavit.” Id.

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“A defendant seeking to suppress evidence obtained pursuant to a search warrant has the burden of proving, by a preponderance of the evidence, that the evidence was obtained in violation of his Fourth Amendment Rights.” State v. Huynh, 683 S.W.3d 803, 814 (Tex. App.—Houston [1st Dist.] 2023, no pet.). Thus, Ebert had to prove by a preponderance of the evidence in the motion to suppress hearing that the probable cause affidavit was not sworn by Baker. Here, the trial court found that Ebert did not meet this burden so the question for this Court is whether the testimony elicited during the suppression hearing supported the trial court’s finding.

At the suppression hearing, Baker consistently testified that he swore to the affidavit during a telephone conversation with Dudley, even though there was some disagreement about the exact point in time he swore to the affidavit. Dudley testified that it was his custom and practice to administer an oath during a telephone conversation with an affiant and to require an affirmative response, but that he did not specifically remember administering an oath to Baker on January 19, 2024. Dudley testified he would not have affixed his signature if he did not believe that Baker took the oath. Baker’s body camera only captured Baker’s side of his conversations with Dudley, but Baker can be heard on body camera telling another Conroe police officer that Dudley told Baker he would swear the oath over the phone. The trial court also noted that the length in pause in the phone conversation

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between Baker and Dudley where Baker testified he believed he gave the oath was consistent with the amount of time Dudley testified that it takes for him to give the oath. In light of this testimony, we conclude the trial court did not abuse its discretion in finding that Ebert failed to prove the absence of an oath by a preponderance of the evidence. We overrule Ebert’s fifth issue.

In Ebert’s sixth issue, she argues that the trial court misapplied the law by treating Baker’s signature as sufficient and that a belated oath could validate the warrant. Given our resolution in issue five, we need not address Ebert’s sixth issue.

Issue Seven: Request for an article 38.23 Jury Instruction In her seventh issue, Ebert complains that she was entitled to an article 38.23 instruction on whether there was probable cause to arrest Ebert. During the charge conference, Ebert argued that she was entitled to such an instruction because she performed well on the standardized field sobriety tests, she was acting like a normal and sober person, and she was able to collect her items and thoughts like a normal person. The trial court denied the request.

Texas Code of Criminal Procedure article 38.23(a) states:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

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

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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(a). “The purpose of the Article 38.23 instruction is to enable the jury to disregard unlawfully obtained evidence.” Olsen v. State, 606 S.W.3d 342, 349 (Tex. App.—Houston [1st Dist.] 2020, no pet.). To be entitled to an article 38.23(a) instruction, “the defendant must show that: (1) an issue of historical fact was raised in front of the jury; (2) the fact was contested by affirmative evidence at trial; and (3) the fact is material to the constitutional or statutory violation that the defendant has identified as rendering the particular evidence inadmissible.” Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012). “When a disputed, material issue of fact is successfully raised, the terms of the statute are mandatory, and the jury must be instructed accordingly.” Id. “Where the issue raised by the evidence at trial does not involve controverted historical facts, but only the proper application of the law to undisputed facts, that issue is properly left to the determination of the trial court.” Id.

“A defendant’s right to the submission of jury instructions under article 38.23(a) is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible.” Madden v. State, 242 S.W.3d 504, 509 (Tex. Crim. App. 2007). “The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct.” Id.

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at 511. “To raise a disputed fact issue warranting an article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question.” Id. at 513. “In this context, a cross-examiner’s questions do not create a conflict in the evidence, although a witness’s answers to those questions might.” Id.

Baker testified, and his dashcam confirmed, Ebert’s erratic and unsafe driving.

Baker further testified that he observed an opened wine bottle and spilled wine on Ebert’s floorboard; her speech was slurred; he detected the odor of alcohol on her breath; he observed six out of six clues of intoxication on the horizontal gaze nystagmus test; he observed five out of eight clues on the walk and turn test; and he observed one of four clues on the one-leg stand test. Baker testified that based on the totality of the circumstances, he believed Ebert was intoxicated. Ebert argues the record contains affirmative evidence creating a material issue of historical fact because on cross-examination Baker acknowledged that Ebert did “pretty good” on certain aspects of the field sobriety test and at times drove or behaved like a “normal” and like a “sober” person. We disagree.

Despite Baker’s concessions on cross-exam, Baker never backtracked from his opinion that Ebert was intoxicated based on the totality of the circumstances. See id. at 515 (“Appellant extensively cross-examined Officer Lily on these facts, but the officer never admitted that he was wrong about appellant’s nervous behavior.”). Defense counsel’s cross-examination did not affirmatively contradict any of the

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circumstances listed by Baker during direct examination in support of his opinion; it merely brought to light additional circumstances not previously mentioned. See Olsen, 606 S.W.3d at 350 (“[Officer’s] statement at one point that Olsen appeared to have the normal use of her physical and mental faculties based on his observation of Olsen’s condition does not contradict the clues of intoxication she showed on the standardized field sobriety tests.”).

Here, the historical facts were not in dispute; rather, some historical facts tended to support Baker’s opinion that Ebert was intoxicated, and other historical facts tended to undermine that opinion. Ebert argues, “The State’s case depended on Baker’s characterization of her performance as impaired, while his own admissions to the jury supported the Defense’s contention that she was not.” But in the context of article 38.23, the issue was not whether Ebert was driving while intoxicated; the issue was whether, based on the totality of the circumstances, there was probable cause to arrest Ebert for driving while intoxicated.

“[P]robable cause for a warrantless arrest exists when facts and circumstances within the officer’s knowledge [or] about which he or she has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense was or is being committed.” Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005) (overruling Castillo v. State, 818 S.W.2d 803 (Tex. Crim. App.1991) “to the extent that it requires both kinds of information to support

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probable cause.”). “The test for probable cause is an objective one, unrelated to the subjective beliefs of the arresting officer, and it requires a consideration of the totality of the circumstances facing the arresting officer[.]” Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) (citing Maryland v. Pringle, 540 U.S. 366, 371 (2003)).

Absent a dispute about the existence of a material fact, the question of whether the totality of the facts amounts to probable cause for an arrest is not a question for the jury. See Madden, 242 S.W.3d at 511 (“The jury [] is not an expert on legal terms of art or the vagaries of the Fourth Amendment. It cannot be expected to decide whether the totality of certain facts do or do not constitute ‘reasonable suspicion’ under the law. . . . Even many experienced lawyers and judges disagree on what constitutes ‘reasonable suspicion’ or ‘probable cause’ in a given situation.”); see also Castillo v. State, No. 09-23-00334-CR, 2025 WL 3020074, at *10 (Tex. App.— Beaumont Oct. 29, 2025, pet. ref’d) (mem. op., not designated for publication); Cuellar v. State, No. 04-19-00385-CR, 2020 WL 4809752, at *4 (Tex. App.—San Antonio Aug. 19, 2020, no pet.) (mem. op., not designated for publication).

In the context of determining whether there was probable cause to arrest Ebert, there was no disputed issue of material fact for the jury to decide; instead, the issue was whether all the facts, including those brought to light during defense counsel’s cross-examination of Baker, added up to probable cause. Therefore, the question was

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not one of fact, but of the application of law to fact, and the trial court did not err in refusing to submit an instruction under article 38.23(a). See Robinson, 377 S.W.3d at 719. We overrule Ebert’s seventh issue.

Conclusion

Having overruled all of Ebert’s issues, we affirm the trial court’s judgment.

AFFIRMED.

KENT CHAMBERS

Justice

Submitted on April 23, 2026 Opinion Delivered August 26, 2026 Do Not Publish

Before Johnson, Wright and Chambers, JJ.