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 indicators of intoxication during field sobriety tests. After Ebert refused a consensual blood draw, the officer obtained a search warrant. Testing showed a blood-alcohol concentration of 0.138.
The State introduced certified judgments establishing two prior DWI convictions, and the jury convicted Ebert and sentenced her to four years in prison. On appeal, she raised seven issues concerning the State’s disclosure of certified judgments and a recording from a prior arrest, the burden applied at a suppression hearing, the legality of the traffic stop, whether the blood-warrant affidavit was properly sworn, and the denial of an article 38.23 jury instruction.
The Court’s Holding
The Ninth Court of Appeals affirmed. It held that the trial court acted within its discretion by admitting the certified judgments despite their late production because Ebert had long received notice of the convictions and noncertified copies of the judgments, failed to identify actual prejudice, and did not establish willful prosecutorial misconduct warranting exclusion. The court also rejected her Brady claim concerning the recording of her 2014 arrest because Ebert and her counsel already knew the recording existed.
The trial court incorrectly stated initially that Ebert bore a clear-and-convincing burden at the traffic-stop suppression hearing, but any error was harmless because the court implicitly found that she established a warrantless seizure and then required the State to justify the stop. The officer’s observations of speeding and following too closely supplied reasonable suspicion. The appellate court also upheld the blood evidence because testimony and circumstantial evidence supported the finding that Ebert failed to prove by a preponderance of the evidence that the officer had not sworn to the warrant affidavit by telephone.
Finally, Ebert was not entitled to an article 38.23 instruction. The officer’s concessions that she performed well on some tasks or sometimes appeared normal did not create a dispute over a material historical fact; they concerned whether the undisputed circumstances collectively established probable cause, a legal question for the trial court.
Key Takeaways
- Late production of certified judgments did not require exclusion where the defense previously received noncertified copies, had ample notice of the convictions, and showed neither willful misconduct nor actual prejudice.
- A suppression court’s use of an erroneously heightened burden was harmless because the defendant nevertheless satisfied her initial burden and the State then proved a lawful basis for the traffic stop.
- An article 38.23 instruction requires affirmative evidence disputing a material historical fact, not merely competing conclusions about whether undisputed facts amount to probable cause.
Why It Matters
The decision illustrates that exclusion is not automatic for a criminal-discovery violation; courts may consider prior notice, actual prejudice, and whether the State acted willfully. It also emphasizes the distinction between factual disputes that must be submitted to a jury under article 38.23 and legal disputes over whether an established set of facts constitutes probable cause.
The opinion further confirms that a warrant affidavit may be sworn during a telephone exchange, although the oath remains an essential constitutional requirement. When a defendant challenges whether an oath occurred, the defendant bears the burden of proving the defect by a preponderance of the evidence.