Timmy Todd Tunison v. The State of Texas--Appeal from County Crim Ct No 10 of Tarrant County

IN THE

TENTH COURT OF APPEALS

No. 10-99-088-CR

TIMMY TODD TUNISON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Criminal Court No. 10

Tarrant County, Texas

Trial Court # 0678920

O P I N I O N

Appellant Tunison appeals his conviction for driving while intoxicated, for which he was sentenced to 120 days in jail, probated for two years, and assessed a $600 fine.

Appellant was charged by information with the misdemeanor offense of driving while intoxicated.

At trial Arlington Police Officer Ronald Langford testified that he stopped Appellant at approximately 2:11 a.m. on December 30, 1997, for failing to stop at a stop sign. Officer Langford approached Appellant who explained that he had just left Front Row Friday's, a bar at the Ball Park and was on his way to IHOP. The officer pointed out that he was headed in the wrong direction for IHOP which caused Appellant to look around to get his bearings. Officer Langford testified that Appellant's eyes were bloodshot and watery; that his speech was a little slurred and he gave off a strong odor of alcohol. Appellant told the officer he had been drinking with a friend who was a Grand Prairie policeman. Officer Langford asked Appellant to step out of his car. Appellant was unsteady on his feet. The officer then performed a horizontal gaze nystagmus test and Appellant failed it. The officer then administered the walk and turn and the one-leg stand tests. Appellant could not follow instructions and failed these tests.

Officer Leland Strickland, a backup officer, observed Appellant taking the tests from a distance and also testified that Appellant failed the tests.

Officer Langford then arrested Appellant for DWI. Appellant became belligerent toward the officer, called him a rookie and told him he should be out catching real criminals. Appellant objected to his car being searched and told Langford his attorney was going to have [his] ass.

Officer Langford transported Appellant to the jail, arriving at 2:32 a.m. At booking Appellant was uncooperative and told Officer Langford he hoped "he got shot in the face tonight." He was videotaped and performed better on the sobriety tests but still displayed clues of intoxication. Officer Darrell Holmes performed the video taping, and he testified that Appellant's eyes were red and watery, that his breath smelled of alcohol, that he slurred his speech, and [that he] had a hard time following instructions. He further testified that, in his opinion, Appellant was intoxicated.

On cross examination, Officer Langford denied writing Appellant any tickets.

Q: Did you give him any tickets that night?

A: No.

Q: You didn't give him a ticket for having an expired license plate? Do you remember that?

A: Our policy is we can't issue citations when we charge somebody on a county charge.

Q: So far as you know he had no ticket for an expired license plate?

A: He was not issued any citations at all.

On redirect examination, Langford testified:

Q: Could you talk to the jury a little bit why didn't get ticketed if he did anything else wrong.

A: It's the policy that if you're charging someone with a county charge, Class B or higher, they don't want us to issue any Class C citations. They feel like it could possibly be double jeopardy. So for running the red light and then charging with the DWI, they don t want us to do that.

The evidence thereafter closed. The State and defense gave their summations and the jury was sent out to deliberate. The court recessed the jury and they came back the next morning to continue their deliberations. At about 9:15 the defense moved to reopen testimony and, if necessary, argument. Appellant had acquired information that would impeach Langford s testimony; specifically, copies of three citations Langford issued to Appellant during his arrest. The first ticket, written at 2:11 a.m., the time of Appellant s stop for running a stop sign. The second and third tickets, for expired registration and expired inspection sticker written between 3:00 and 3:10 a.m., more than half an hour after arriving at the jail at 2:32 a.m. and after the video. All three tickets bear the signature and badge number of Langford.

The trial court denied Appellant s request.

The jury thereafter returned finding Appellant guilty. Appellant elected to have the court assess punishment. The judge assessed punishment at 120 days in jail, probated, and a $600 fine. Judgment was entered January 7, 1999. Appellant filed motion for a new trial on January 29, 1999. The motion focused on why Appellant should be granted a new trial because the new evidence showed that the State s chief witness, Officer Langford, had testified falsely. The motion included copies of three citations issued by Langford. The motion further included a request for a hearing. Appellant filed a second request for a hearing on March 9, 1999. The court never held a hearing on Appellant s motion for a new trial and it was overruled by operation of law. Tex. R. App. P. 21.8.

Appellant appeals on one point of error: The trial court erred in overruling Appellant s motion for new trial because the State obtained a conviction based upon untruthful testimony by its chief witness and violated Brady by not disclosing impeachment evidence.

A motion for new trial must be timely presented within ten days of filing or within seventy-five days of the date of imposition or suspension of sentence if the trial court gives its permission. Tex. R. App. P. 21.6: Price v. State, 840 S.W.2d 694, 695 (Tex. App. Corpus Christi 1991, pet. ref d). But presentment may be assumed where the trial court rules on the motion within the seventy-five-day window of imposition or suspension of sentence. Musgrove v. State, 960 S.W.2d 74, 76 (Tex. Crim. App. 1998).

Here, there is no evidence that Appellant s motion for a new trial was timely presented or ruled on with the seventy-five-day window. Appellant concedes that the motion was overruled by operation of law. Absent a ruling by the trial court or a showing the motion was presented to the trial court, Appellant has no grounds for complaint on appeal. Gibbs v. State, 819 S.W.2dd 821, 836 (Tex. Crim. App. 1991), cert. denied, 502 U.S. 1102 1992); Gray v. State, 980 S.W.2d 772, 774 (Tex. App. Fort Worth 1998, no pet.).

The trial court did not abuse its discretion in failing to grant Appellant s motion for a new trial. Musgrove at 75; Gray at 774.

Appellant s point is overruled. The judgment is affirmed.

FRANK G. MCDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Gray and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 29, 2000

Do not publish