Unreported / Non-Citable
Background
Nicole Diane Ebert was charged with driving while intoxicated, third or more, after a Conroe police officer observed her speeding, weaving, crossing onto the shoulder, and following another vehicle too closely. The officer smelled alcohol, saw an open wine bottle, and observed multiple clues of intoxication during field sobriety testing. After Ebert refused consent to a blood draw, the officer obtained a warrant; testing showed a blood-alcohol concentration of 0.138.
A jury convicted Ebert and sentenced her to four years in prison. On appeal, she challenged the admission of certified prior-conviction judgments, the punishment-stage testimony of a trooper involved in an earlier arrest, the burden applied at a suppression hearing, the legality of the traffic stop and blood-draw warrant, and the denial of a requested jury instruction under Texas Code of Criminal Procedure article 38.23.
The Court’s Holding
The Ninth Court of Appeals affirmed. It held that the trial court acted within its discretion by admitting certified copies of Ebert’s prior judgments despite their production on the first day of trial. Ebert had received noncertified copies months earlier, had advance notice that the State intended to use the convictions, and identified no lost defense strategy or other actual harm. The court likewise rejected her challenge concerning the delayed production of a video from her 2014 arrest: Ebert already knew the recording existed, the trial court gave counsel time to review it before cross-examination, and the appellate record did not contain the video or establish that the delay affected her substantial rights.
Although the trial court initially misstated the suppression burden as clear and convincing evidence, the appellate court found any error harmless because Ebert successfully established that the seizure was warrantless and the court then required the State to prove probable cause. The officer’s observations supplied reasonable suspicion for the traffic stop, and the record supported the finding that the officer swore to the blood-warrant affidavit by telephone before signing the corrected affidavit. Finally, Ebert was not entitled to an article 38.23 instruction because the evidence presented no disputed historical fact material to probable cause; the disagreement concerned the legal significance of otherwise undisputed circumstances.
Key Takeaways
- Late production of certified judgments did not require exclusion where the defense previously received noncertified copies, had advance notice of the convictions, and showed no concrete prejudice.
- A trial court’s erroneous statement of the suppression standard was harmless because the defendant cleared her initial burden and the State was required to establish probable cause.
- An article 38.23 instruction is unavailable when the dispute concerns whether established facts amount to probable cause rather than whether a material historical fact occurred.
Why It Matters
The opinion illustrates that a discovery violation does not automatically result in exclusion or reversal. Courts will consider the defendant’s prior knowledge, the State’s conduct, the remedy provided at trial, and whether the delayed disclosure actually affected substantial rights.
It also underscores the distinction between factual disputes that may warrant an article 38.23 jury instruction and legal questions reserved for the court. Evidence pointing in different directions on intoxication does not itself create a disputed historical fact about the legality of an arrest.