MEMORANDUM OPINION

No. 04-16-00614-CR

Stetson Roy SEKULA, Appellant v. The STATE of Texas, Appellee

From the County Court at Law No. 6, Bexar County, Texas Trial Court No. 519407 Honorable Wayne A. Christian, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice

Delivered and Filed: March 21, 2018

AFFIRMED AS REFORMED

This case stems from Appellant Stetson Sekula’s driving while intoxicated conviction following a one-vehicle accident. The jury found Sekula guilty; and, the trial court assessed punishment at 180 days in the Bexar County Jail, suspended and probated for a period of one-year.

On appeal, Sekula raises several issues related to the testimony of State witnesses San Antonio

Police Officer Walter Henning and forensic scientist Debra Stephens. Sekula also contends the trial court erred in assessing attorney’s fees. We reform the judgment to delete the assessment of the attorney’s fees against Sekula and affirm the judgment as reformed.

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PROCEDURAL BACKGROUND

Sekula was arrested for driving while intoxicated on June 4, 2016, and the trial court appointed defense counsel on June 12, 2016. Less than a month later, on July 8, 2016, defense counsel filed multiple, standard discovery motions, including several motions to suppress, a request for the State’s witness list, and an all-encompassing “Defendant’s Motion Requesting

Relief of Various Sorts.” Two weeks later, on July 20, 2016, defense counsel filed a “Motion to

Suppress Videotape and Audiotape Evidence” and a “Motion to Take Judicial Notice of Nystagmus Causes Other than Alcohol.” On August 8, 2016, the State filed its list of witnesses; and, the following day, on August 9, 2016, the State filed an amended witness list.

Sixty-six days after Sekula was arrested and charged, the matter was called for trial. On the morning of August 9, 2016, the trial court heard pretrial motions; the jury was selected that

afternoon. After two days of testimony, Sekula was found guilty of driving while intoxicated. The trial court sentenced Sekula to 180 days confinement in the Bexar County Jail, suspended and probated for a term of one-year.

On appeal, Sekula contends the trial court erred in denying his (1) motions to suppress, (2) motions to exclude the expert testimony of Debra Stephens and Officer Walter Henning, and (3) motions for continuance. Sekula also contends the trial court erred in ordering that he pay court- appointed attorney’s fees without a hearing to determine whether there was a change in his financial status.

We turn first to Sekula’s arguments regarding the State’s failure to disclose its expert witnesses as required under Texas Code of Criminal Procedure article 39.14(b). See TEX. CODE

CRIM. PROC. ANN. art. 39.14(b) (West Supp. 2017).

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EXPERT WITNESSES AND ARTICLE 39.14(b)

A. Arguments of the Parties

Sekula contends the State violated article 39.14(b) by not timely disclosing expert witnesses. He argues that because the State failed to comply with article 39.14(b), the trial court erred in overruling his sworn motion for continuance and allowing the experts to testify regarding the horizontal gaze nystagmus test, nystagmus in general, the results of Sekula’s breath-alcohol concentration level test, and the science of breath-alcohol concentration levels.

The State counters that first, the record does not indicate, and Sekula does not argue, that the State acted in bad faith. Second, the evidence shows Sekula was not surprised by either witness and could have reasonably anticipated their testimony.

B. Texas Code of Criminal Procedure article 39.14

Texas Code of Criminal Procedure article 39.14, or the Michael Morton Act, provides that

the State must, upon the defendant’s request, allow the defendant access to reports, statements, and other documents in the State’s possession that do not constitute work product. See id. Article

39.14(b) further provides that

On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.

Id. art. 39.14(b). All parties agree the State provided access to its file at the time of defense counsel’s appointment, including all offense reports and videotapes of the night of Sekula’s arrest.

The State did not, however, provide defense counsel with a separate witness list including Officer

Henning’s and Stephens’s names, as required under article 39.14(b), until the day before the trial began. See id.

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C. Testimony before the Trial Court

San Antonio Police Officer Walter Henning testified that shortly after midnight, on June

4, 2016, he was dispatched to the corner of Prue Road and Old Prue Road for a major, single- vehicle accident. When Officer Henning arrived, the driver of the vehicle was not at the scene.

Sekula was located less than a quarter of a mile from the accident scene. Officer Henning described Sekula as having “some small lacerations on him and had some, like, plants and stuff on his clothing, remnants of plants.” The officer confirmed that Sekula was not injured and did not require medical assistance.

Officer Henning testified Sekula’s eyes were bloodshot and he “was emitting an odor of alcoholic beverages. . . . Not very, very strong, but strong enough where I could smell it. I would

say moderate.” Sekula affirmed to Officer Henning that he was in an accident on Prue Road, and explained that “he was traveling somewhere between 60 and 70 miles per hour, possibly 80, [when] he lost control.” Referring to his notes, Officer Henning testified that Sekula told him, “To be honest with you, completely honest, there was alcohol involved.” The officer described Sekula as polite, talkative, and his speech as “slurred.” Sekula relayed to Officer Henning that he had purchased twenty Budweiser beers and that he had consumed “about six” of the beers and “half a shot of Jack Daniel’s whiskey.” On cross-examination, Officer Henning acknowledged Sekula told him the accident was not a result of his “being drunk,” but because he was “stupid.” Based on Sekula’s appearance and demeanor, Officer Henning decided to administer field sobriety tests.

Outside the presence of the jury, defense counsel objected, asserting that because Officer

Henning was an expert with regard to any testimony about the horizontal gaze nystagmus test or nystagmus in general, and the State failed to designate Officer Henning as an expert witness, pursuant to article 39.14(b), the officer was precluded from offering testimony about the field sobriety test or the causes of nystagmus. Defense counsel further explained he would have the 04-16-00614-CR same argument with regard to forensic expert Debra Stephens if the State planned to call her as a witness.

Trial Court: Where were you yesterday before we went into voir dire and picked a jury when I said, “Is there anything before trial and before picking a jury that we need to talk to? Any pretrial motions, any other issues we need to take up outside the jury presence?” And the State said they had a motion in limine, and we talked about that. And I don’t recall if you had anything at all, but you certainly didn’t bring this up yesterday. Why not? Defense Counsel: Judge, I don’t know what they’re going to do, what experts they’re going to put on. Trial Court: Well, why didn’t you say, “Yes, I have an issue. They haven’t given us a valid witness list.” And, “Hey, by the way, they haven’t given us our discovery for the breath test.” You didn’t say a word. Why? Defense Counsel: The breath test was because we never received proper disclosure of the expert. And the witness list, it’s not my job to cure their errors, Your Honor.

After the trial court denied his motion, defense counsel urged his sworn motion for continuance asserting that under the same principles, he could not effectively cross-examine either expert.

Trial Court: And why didn’t you bring this to my attention yesterday before we spent four and a half hours picking a jury? Defense Counsel: Judge, again, the State is just now bringing their experts. Trial Court: Answer my question, Counsel. Why did you not bring it to my attention yesterday? If you wanted a continuance, you knew the State was going to put on breath-test evidence. We discussed it yesterday at length. You didn’t say a word of it to the Court. Why didn’t you object? Defense Counsel: I don’t know that they want to put on breath-test evidence. There’s two other ways to prove this case. Trial Court: Now, Counsel, you’re not telling the truth, so have a seat and be quiet.

The jury was brought back into the courtroom and the trial proceeded. Officer Henning testified that he observed four clues out of six when he conducted the horizontal gaze nystagmus test on Sekula. The officer also testified that Sekula exhibited three clues out of eight on the walk 04-16-00614-CR and turn test, and one out of four clues on the one-leg stand test. Officer Henning further testified that, based on the totality of the circumstances, including his training and experience in viewing

intoxicated individuals, he concluded Sekula was intoxicated. Sekula was placed under arrest and Officer Henning transported Sekula to booking where Sekula agreed to submit to a breath-alcohol test.

In addition to other officers at the scene, and lay witnesses, the State called Debra Stephens, a technical supervisor with Alamo Forensic Services. Stephens explained how alcohol affects an individual’s central nervous system and how brake-reaction time in a vehicle will be slowed. She

also testified that alcohol affects the optic nerve and an individual’s ability to see clearly, specifically one’s peripheral vision, and an individual’s balance and coordination, both of which are critical to operating a motor vehicle and steering safely on the roadway. Stephens also explained that, regardless of an individual’s size, the human liver will metabolize alcohol at .0105 concentration, or approximately one drink, per hour.

Stephens testified that “everyone has lost the normal use of their mental and physical

faculties with an alcohol concentration of 0.08.” As part of her job duties, she calibrates the Intoxilyzer machines in Bexar County, including the machine used to test Sekula. She opined

Sekula’s test results of 0.107 and 0.122 per 210 liters of breath were accurate and performed on a properly calibrated machine.

Defense counsel reurged his motion for continuance. The trial court again denied the motion.

ANALYSIS

Because Sekula’s motions for continuance turn on the trial court’s admission of Stephens’s and Officer Henning’s testimony, we first address whether the trial court erred in allowing their testimony.

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A. Trial’s Court’s Admission of the Testimony of Officer Henning and Forensic Scientist Stephens 04-16-00614-CR

State planned to call. The State’s failure to timely disclose the names of any expert witnesses led

him to believe the State would not be relying on expert testimony. The trial court disagreed, “Merely filing a motion is not enough. I know you think it is, but it’s not.”

Prior to September 1, 2015, the State’s duty was “triggered only by a defendant’s motion requesting disclosure of the State’s testifying experts and a trial court order.” In re Tibbe, No.

03–13–00741–CV, 2013 WL 6921525, at *2 (Tex. App.–Austin Dec. 31, 2013, orig. proceeding)

(mem. op.) (emphasis added). Article 39.14(b) no longer requires a trial court order; the defendant’s request alone trigger’s the State’s duty to disclose. See Act of May 21, 1999, 76th

Leg., R.S., ch. 578, § 1, 1999 Tex. Gen. Laws 3118, 3118 (amended 2015) (current version at TEX.

CODE CRIM. PROC. ANN. art. 39.14(b)). Because defense counsel’s request was sufficient to trigger

the State’s duty to disclose, we conclude the State failed to timely designate Officer Henning and Debra Stephens in accordance with article 39.14(b). See TEX. CODE CRIM. PROC. ANN. art. 39.14(b). Our analysis, however, does not end here.

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(1) whether the defense shows that the State intended to deceive; (2) whether the State’s notice left the defense adequate time to prepare; and (3) whether the State freely provided the defense with information (e.g., by maintaining an open files policy, by providing updated witness lists, or by promptly notifying the defense of new witnesses).

Hardin v. State, 20 S.W.3d 84, 88 (Tex. App.—Texarkana 2000, pet. ref’d) (omitted); accord

Martinez, 131 S.W.3d at 29; see also State v. LaRue, 108 S.W.3d 431, 434 (Tex. App.—Beaumont

2003), aff’d, 152 S.W.3d 95 (Tex. Crim. App. 2004) (defining a willful act as one that is “done voluntarily and intentionally, with the specific intent to disobey the law”); Osbourn v. State, 59

S.W.3d 809, 816 (Tex. App.—Austin 2001), aff’d, 92 S.W.3d 531 (Tex. Crim. App. 2002) (stating that evidence should not be excluded absent evidence the State acted in bad faith in failing to disclose the evidence or willfully failed to respond to the trial court’s order under art. 39.14(b)).

Here, Sekula’s case progressed from arrest to trial in a little over two months. The record indicates that on July 8, 2016, thirty-one days before the start of trial, defense counsel filed a plethora of discovery motions, including a request for the State’s witness list. Within thirty days

of the defense request, on August 8, 2016, the State filed its Witness List. Among other witnesses, the notice identified Stephens as an expert and Officer Henning as a San Antonio Police Officer.

The record also indicates the State provided defense counsel copies of its file and the police report through E-Discovery. Based on the lack of any evidence that the State’s failure to timely disclose was an intentional effort to deceive Sekula, we conclude the trial court did not abuse its discretion in finding the State’s late designation was not the result of bad faith. b. Reasonably Anticipate

We must also determine whether defense counsel could have reasonably anticipated that the State would rely on the testimony of either Stephens or Officer Henning.

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(1) Officer Henning’s Nystagmus Testimony

Officer Henning’s name was included in the discovery materials, specifically the offense report, provided to Sekula’s counsel when he was appointed. See Fox v. State, No. 04-15-00618-

CR, 2017 WL 96160, at *3 (Tex. App.—San Antonio Jan. 11, 2017, no pet.) (mem. op., not designated for publication). As this court previously determined in Fox, Sekula could have

reasonably concluded that the officer who conducted the field sobriety tests, the interview, and took the breath-alcohol specimen would be called by the State as a witness. See id.

In the present case, not only did defense counsel have a copy of the police report, but on

July 20, 2016, defense counsel filed a Motion for Court to Take Judicial Notice of Nystagmus

Causes Other Than Alcohol. By filing this motion, the trial court could have reasonably determined defense counsel anticipated the State would be presenting “an officer’s testimony

relating to nystagmus.” We, therefore, conclude the trial court did not abuse its discretion in finding Sekula could have reasonably anticipated that an officer, and more specifically Officer

Henning, would testify regarding nystagmus and the causes of nystagmus, including alcohol. See

Lemasuier v. State, 91 S.W.3d 897, 900–01 (Tex. App.—Fort Worth 2002, pet. ref’d) (noting prosecutor’s open file and witness’s name in report in the State’s file); White v. State, No. 2-02-

143-CR, 2003 WL 865351, at *3 (Tex. App.—Fort Worth Mar. 6, 2003, pet. ref’d) (mem. op., not designated for publication).

(2) Debra Stephens Breath-Alcohol Testimony

Similarly, the police report and the discovery provided to Sekula’s counsel included the breath-alcohol test results showing Sekula’s breath tests exceeded the legal limit. Sekula’s counsel could have reasonably anticipated that the State would call a witness to provide testimony regarding the Intoxilyzer and to explain the meaning of the test results. Moreover, even assuming that Sekula’s counsel prior to trial was under the mistaken belief that the State was not planning - 10 -

04-16-00614-CR to present evidence of the breath-alcohol test results, the issue of the Intoxilyzer was discussed at

some length during voir dire. In fact, Sekula’s counsel asked the panel, If [the State] bring[s] you evidence of a breath test, will you make them provide— show that [the Intoxilyzer] provides trustworthy or reliable evidence that the blood- alcohol content was .08 or more at the time the person was operating the motor vehicle?

Without objection from defense counsel, the trial court gave the following instruction:

Ladies and gentlemen, we’re talking about the use of what the State calls scientific evidence, which may be a blood or a breath test. The State, in my understanding, if they have that type of evidence, will supply you with experts that will testify for you the workings of the machine, the reliability of the machine, that sort of thing.

The breath-alcohol test remained an issue through jury selection. Potential jurors were questioned, and the trial court even excused several potential jurors for cause, over the possible testimony regarding Sekula’s breath-alcohol test. Assuming, arguendo, that prior to voir dire, Sekula’s

counsel was not anticipating the State would call an expert to testify regarding the Intoxilzyer, after the State’s voir dire, and the trial court’s instruction regarding the State presenting an expert on “the workings of” and “the reliability of” the Intoxilyzer, defense counsel should have reasonably anticipated that the State would call Stephens and Officer Hennings as expert

witnesses. Moreover, after the jury was selected and released for the day, the trial court again asked both defense counsel and the State if there were any other issues the court needed to address.

Defense counsel remained silent.

The following morning, Officer Henning testified, without objection, regarding his being called to the scene of an accident, his locating Sekula, his speaking to Sekula, and Sekula’s statements to the officer. Only then did defense counsel object to Officer Henning’s testimony regarding the horizontal gaze nystagmus test and Stephens’s testimony as to the breath-test evidence.