Dewayne Lee Waldrup v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________
NO. 09-21-00154-CR
________________

DEWAYNE LEE WALDRUP, Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________

On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 20-10-12141-CR
________________________________________________________________________

MEMORANDUM OPINION

The Court’s opinion and judgment of June 21, 2023 are withdrawn and the

following opinion is substituted in its place. The motion for rehearing is denied.

A jury convicted Dewayne Lee Waldrup of the second-degree felony offense

of possession of a controlled substance, cocaine, in an amount greater than four

grams but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.115(a),

(d). After finding two enhancement paragraphs true, the jury assessed punishment at

fifty years of confinement. See Tex. Penal Code Ann. § 12.42(b) (providing

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enhanced punishment for habitual offenders). In thirteen issues, Waldrup complains:

the trial court violated his due process rights by denying his motion to dismiss the

indictment without a hearing; the evidence is legally insufficient to support his

conviction; the trial court erred by failing to include his requested voluntariness

instruction in the application paragraph of the jury charge; the regional presiding

judge summarily failed to hold a hearing on his two motions to recuse; the trial court

erred by granting the State’s motion to quash the subpoena for the Honorable Paul

Damico; the trial court should have suppressed evidence from his arrest; the trial

court erred by denying his motion to dismiss appointed counsel and failing to replace

him with an attorney who would follow Waldrup’s directions; the trial court erred

by denying his motion to dismiss based on “outrageous prosecutorial misconduct”

after his case was reindicted; the trial court violated his right to represent himself by

delaying a Faretta hearing; and the trial court erred by denying his motion to quash

the indictment without a hearing. As discussed below, we affirm the trial court’s

judgment.

PRETRIAL MOTIONS AND RULINGS

Waldrup filed various motions to dismiss, a motion to quash the indictment,

motions to recuse, motions to suppress, and motions regarding his right to self-

representation throughout the proceedings. On appeal, he complains about certain

pretrial rulings the trial court made on some of these motions. We will address the

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pertinent factual background and procedural history concerning these pretrial rulings

with the individual issues raised below as necessary to resolve the specific

complaints he raises on appeal.

EVIDENCE AT TRIAL

Sergeant Paul Hahs’s Trial Testimony

Hahs is a sergeant with the Montgomery County Sheriff’s Office (MCSO)

assigned to the homicide and violent crimes unit. Hahs testified that on October 25,

2019, he participated in an MCSO operation to surveil a local bank and businesses

that were targets of “jugging operations.” Hahs described jugging as when a suspect

sits and surveils a bank and watches for a customer to come out with money in their

hand, then follows them home or to another business and burglarizes their residence

or vehicle to steal their money. Officers were looking for suspects involved in

jugging of bank customers.

Hahs was assigned to watch for suspicious activity at the Chase Bank in New

Caney, located in Montgomery County. On the police radios, Hahs heard there was

activity at Chase Bank, and a black Ford Explorer was identified as a suspect’s

vehicle, which he later observed. Hahs explained nobody exited the vehicle or came

to the car to drop anything off, which is typical of a jugging suspect. Hahs testified

their suspicions increased when a customer exited the bank and left in a Dodge truck,

and as that truck drove away, the suspect vehicle followed it “turn-for-turn, stop-for-

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stop for quite a ways.” The suspect vehicle lost the Dodge truck in a neighborhood,

so the officers returned to their original positions, and Hahs learned on the radio that

the suspect’s vehicle returned to Chase Bank. The suspect’s vehicle then followed

another vehicle from the bank in the same direction but got caught at a traffic light

and could not continue. The suspect’s vehicle then returned to Chase Bank and

parked in front of the bank.

Hahs testified that the sergeant in charge decided to run a “decoy operation”

and send an officer in to pretend to be a customer, and Hahs volunteered to be the

decoy. Inside the bank, Hahs met with the manager briefly to let her know he was a

police officer, then he met with the clerk and requested something that resembled “a

large wad of money.” They provided Hahs with a cash envelope full of blank printer

paper. He exited the bank pretending to be on his cell phone and waving the stuffed

envelope in his hand. The suspect’s vehicle was two spaces to his left with two

people in it. Hahs testified the driver had a “thinner body frame[,]” and the passenger

“had a larger frame” and “appeared to be more heavyset.” Hahs could tell that the

vehicle’s occupants were male.

Hahs notified other officers on the radio that they were leaving, and the

suspect’s vehicle began following him “turn-for-turn.” He parked in the Walmart

parking lot, and the suspect’s vehicle followed him. He testified he put the envelope

on his center console in plain sight then walked into Walmart and left an open

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parking space on the driver side of his truck. Hahs positioned himself inside Walmart

so he could watch his truck, but he did not have a full view of his vehicle, because

there were other cars in the parking lot. He observed the suspect’s vehicle pass in

front of the store, then back in next to his vehicle. Hahs did not see what happened

next but heard radio traffic that a male exited the car and tried to get into his truck,

then they were given the “bust signal[.]”

Hahs testified he ran out of Walmart to his truck, where he observed a male

lying between his truck and the suspect’s vehicle in handcuffs and another male in

handcuffs outside the vehicle on the passenger side. The person on the driver side

was David Thomas, “a thin build, African-American male[.]” Hahs identified

Waldrup in court as the passenger. Booking photos of Waldrup and Thomas were

admitted at trial during Hahs’s testimony and were consistent with Hahs’s

description.

Video from the Walmart parking lot was admitted without objection. Hahs

testified the video showed the suspect’s vehicle back into a space, with the driver’s

door next to his vehicle. Hahs testified that the video did not show what happened

between the vehicles, but you could see the police units converge on the area and

Hahs running to the vehicle. Hahs testified that although they did not break the

window or get into the vehicle, officers saw enough to detain the men and find out

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what was going on, since they did not have permission, giving officers reasonable

suspicion of criminal activity.

Hahs testified that when detectives interviewed Waldrup, he told them they

left Houston in the suspect vehicle, stopped at a bank to deposit some money, drove

around, and smoked marijuana. Hahs testified that Waldrup confirmed to detectives

that he was the passenger in the vehicle.

Trial Testimony of Deputy Matthew McCord

Deputy McCord works for the MCSO and is assigned to the Organized Crimes

Unit, where he focuses on narcotics and conducts surveillance. As a member of the

Organized Crimes Unit, McCord works with the Drug Enforcement Agency

(“DEA”). McCord testified he has experience and training investigating narcotics

and knows how they appear and are packaged.

McCord testified he was also assigned to the operation that conducted the

bank-jugging sting in the New Caney area. McCord was assigned to surveil Chase

Bank and parked in a lot north of the bank. McCord said just before 2:00 p.m., he

observed a “black Ford SUV with Tennessee tags” arrive at the bank. He explained

the suspect vehicle was parked in a spot where they could see the front door. McCord

saw no one get out of the suspect vehicle, which was suspicious.

McCord testified the suspect vehicle then followed someone in a work truck

who left the bank, but that was not a successful jugging, and the suspect vehicle

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eventually returned to the bank. McCord said the suspects eventually followed

another vehicle, which also did not succeed. McCord explained that when the

suspects again returned to the bank, a decoy was put into the operation. McCord

testified that when the decoy, Hahs, left the bank with an envelope, the suspect

vehicle followed him to Walmart.

At Walmart, McCord could not see the attempted break in from his location

but was listening on the radio. After the signal was given, he waited at his location

in the Walmart parking lot to make sure everything went smoothly. Once everybody

was detained, McCord drove up to the scene but never saw who was in the passenger

or driver seats. McCord testified that when he arrived at the scene, Waldrup and

Thomas were already detained and handcuffed, and because he did not see them, he

assumed they were in patrol cars.

McCord was assigned to take photographs as officers inventoried the vehicle.

He photographed items in the front passenger seat area. McCord testified that in the

front passenger area floorboard, he observed an eyeglass case. There “was a bunch

of stuff” on the floorboard with the glasses, and he photographed that area. McCord

testified that in the eyeglass case there were two baggies, containing what looked

like cocaine, one powder and one rock that field tested positive, along with a pill

bottle of tablets. During McCord’s testimony, photographs of the items in the

passenger floorboard were admitted into evidence without objection. The laboratory

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report regarding the substances was also admitted during McCord’s testimony

without objection. McCord testified that the reports concluded one bag contained

3.8 grams of cocaine, and the other bag contained 2.12 grams of cocaine, totaling

more than four grams.

McCord added that in narcotics investigations, they try to determine who has

possession of the substance. McCord explained that the location of the substance is

a relevant factor, including who was sitting closest to it, and typically, this is not the

type of thing left lying around.

Testimony of Tim Slusher

Slusher testified that in October 2019, he was a digital evidence examiner

assigned to the crime laboratory and performed extractions on cell phones,

computers, and other electronic devices. He performed digital forensics on four cell

phones. Slusher testified that before they perform a search on cell phones, they must

have a warrant or the owner’s consent. Slusher said that in this case, there was a

search warrant for all four phones. One of the phones was a Samsung SMG955U

and another was a Samsung J737T1. After he extracted the data, he did not analyze

the results but sent the generated report to the detective for review. Slusher testified

if there were identifiers obtained, they would be in the report, and he did not have

any information about who owned the devices.

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Testimony of Deputy Thomas Epperson

Deputy Epperson works in the MCSO Patrol Division. In October 2019, he

was assigned to the Auto Theft Task Force and participated in the bank jugging

operation. Epperson testified he was in a marked unit and was part of the “takedown

units set back away in case we needed it.” He explained they would be used if a

traffic stop was needed or if they needed a visible police presence. Epperson said he

was about half a mile east of Chase Bank in a church parking lot. He monitored the

radio and waited for them to call. Ultimately, Epperson heard a bait car was

introduced and suspects were detained.

Epperson testified that when he arrived, two suspects were detained, and his

sergeant assigned him to be the lead investigator. Epperson testified he did not

personally observe what happened in the parking lot and was not there when they

called for a takedown. Epperson was told that Thomas was the driver and Waldrup

was the passenger. Nobody told Epperson whose possession the cocaine was in, but

they told him where it was located.

Epperson explained that he began gathering information and assigning people

to collect the information for the investigation. Epperson testified that he did not

personally participate in the vehicle inventory and did not take custody of the

evidence from the vehicle, it was instead submitted to the crime lab for safekeeping.

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 Epperson said they recovered four phones, and he obtained a warrant to search

them. He testified that Detective Slusher performed the phone analysis, and

Epperson reviewed the results of those extractions. He also explained that the

suspect vehicle was owned by a rental car company, so they contacted the rental

company to determine who rented it and for how long. They then obtained consent

to search the infotainment system from the company’s loss prevention manager, and

when they obtained consent, the rental period for the vehicle had terminated.

Epperson testified the regional crime lab performed a download of the infotainment

system and provided Epperson with the information, which he reviewed. Google

images downloaded from the infotainment system showing the vehicle’s movements

on that day were admitted into evidence during Epperson’s testimony.

Testimony of Detective Johnathan Jordan

Detective Jordan works for MCSO and is assigned to the DEA Major Drug

Squad in Houston. He testified he is trained in identifying narcotics and knows slang

terminology for narcotics. Jordan testified that on October 25, 2019, he participated

in surveillance for the bank-jugging operation in New Caney. Jordan testified he

conducted mobile surveillance and followed the suspect vehicle. Jordan observed

the vehicle follow two victim vehicles and later learned there would be a bait car

used in the operation.

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 Jordan testified that once the bait car was deployed, he moved from the bank

to the Walmart parking lot. Jordan was in the Walmart parking lot before Sergeant

Hahs arrived and could see where Hahs went when he arrived. Jordan testified he

saw Hahs’s vehicle and eventually observed the suspect vehicle back in next to

Hahs’s vehicle. Jordan testified that he “could see very clear[,]” and the driver got

out and “looked like he was attempting to gain entry into the vehicle.” Jordan

explained that “he came up and either was messing with the door or looking into it

or some fashion like that.” Jordan testified that by then, he already believed the

person was engaging in bank jugging since they followed other vehicles before

following Hahs. Jordan aired on the radio that it appeared the suspect was getting in

or breaking in but did not recall his exact words, “and units converged on the

vehicle.”

Jordan testified he then approached the vehicle. By the time he moved to their

location, the driver and passenger had been removed from the vehicle. Jordan

identified Waldrup as the passenger. Jordan testified that when he approached the

suspect vehicle, the doors were open, and he detected the odor of unburnt marijuana.

Jordan said that once everything was secured, he was tasked with the vehicle search

and inventory, and after it was evident the odor of marijuana was coming from inside

the suspect vehicle, Jordan began a search of the vehicle.

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 He found three cell phones inside the suspect vehicle and a fourth was

provided to him, and he was told it was from one of the individuals. One of the

phones was a Samsung Galaxy S8 model number SMG955U and another was a gray

Samsung model number J767T1. Jordan located a sunglass case on the passenger

floorboard, a key card, gloves, and a glass bottle with tobacco in it, as shown in a

photograph admitted as State’s Exhibit 13. Regarding the photograph, Jordan

testified you could see cigarillo packets and loose marijuana scattered on the floor.

Jordan testified this was common, since people who smoke marijuana remove the

tobacco from the cigars and fill the wrapping with marijuana, which explained the

bottle containing loose tobacco. Jordan testified that inside the sunglass case he

found a baggie with powder cocaine, another baggie containing crack cocaine, and

a pill bottle with several types of prescription pills. He said another photograph

admitted into evidence showed the interior of the eyeglass case. Jordan identified a

“distinctive Xanax pill” because it was “rectangular shaped, look[s] kind of like a

bar.” Jordan explained the street term for Xanax pills was “[b]ars.” Jordan testified

the two baggies seized with the pills were sent for analysis and came back positive

for cocaine.

Jordan testified it was common for people carrying drugs to put them in a

container. He said part of his job is determining who possessed the drugs, and the

location of the drugs in relation to the person is important; the context of the scene

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and “totality of everything that comes together” are also factors. Jordan explained

that items around the drugs are important, because if you can identify the relationship

and other items with it, you can determine who the drugs belong to. Jordan testified

that if someone knew about the drugs, that is also important as it shows whoever was

in possession knew they were there. Jordan testified he believed the drugs belonged

to the passenger “based on the location and the way it went.” Jordan testified that he

explored other evidence, and his opinion about who the drugs belonged to did not

change, it grew stronger.

A photograph of a Quality Inn hotel key card was admitted into evidence, and

Jordan testified the key card became important, because the J737T1 cell phone had

text messages that referenced the hotel’s address. Text messages from that cell phone

were also admitted. Jordan reviewed the J737T1 cell phone’s text messages, photos,

and contact list, and believed the phone belonged to Waldrup, because there were

selfies on the phone of Waldrup. Jordan also explained that several incoming texts

referred to the person who possessed the phone as “Dewayne.” Jordan testified other

photos of interest in the phone included some of the narcotics. Text messages from

the phone provided a room number at the Quality Inn and the hotel’s address. Jordan

explained that when you identify the owner of the cell phone, the location of the key

card, and the location of the drugs, it all ties together. Jordan also testified that a

recorded jailhouse conversation between Waldrup and his girlfriend involved him

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telling her he was charged with possession, and when she asked if it was for the pills,

he said yes.

After the State rested, the trial court denied Waldrup’s Motion for Directed

Verdict. The jury found Waldrup guilty, found both enhancement paragraphs true,

and assessed punishment at fifty years of confinement.

ANALYSIS

Issue Two: Sufficiency of the Evidence

We begin our analysis with Waldrup’s second issue in which he challenges

the sufficiency of the evidence, because if sustained, it would entitle him to a

judgment of acquittal and rendition. See Benavidez v. State, 323 S.W.3d 179, 181

(Tex. Crim. App. 2010) (explaining appellate courts render judgment of acquittal

only if trial court’s ruling amounts to de facto acquittal or appellate court determines

evidence was legally insufficient to support conviction); O’Reilly v. State, 501

S.W.3d 722, 726 (Tex. App.—Dallas 2016, no pet.) (addressing legal sufficiency

issues first, because if meritorious, court would render judgment of

acquittal). Waldrup specifically argues that the trial court erred in denying his

Motion for Directed Verdict, because the State failed to prove he committed all

elements of the crime and failed to prove sufficient affirmative links existed to tie

him to the cocaine found in the car.

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 We review complaints of legal insufficiency under the standard in Jackson v.

Virginia, 443 U.S. 307, 318–19 (1979); see Fernandez v. State, 479 S.W.3d 835,

837 (Tex. Crim. App. 2016). Under Jackson, we ask “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson,

443 U.S. at 319 (emphasis in original); see Brooks v. State, 323 S.W.3d 893, 912

(Tex. Crim. App. 2010). We defer to the jury’s responsibility to resolve conflicts in

testimony, weigh the evidence, and draw reasonable inferences from the evidence.

See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We presume the jury

resolved any conflicts in the testimony in favor of the verdict. See Brooks, 323

S.W.3d at 899 n.13. We treat direct and circumstantial evidence equally and

“consider the combined and cumulative force of the evidence” viewed in the light

most favorable to the jury’s verdict. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007).

Waldrup was indicted for “intentionally or knowingly possess[ing] a

controlled substance, namely, cocaine, in an amount of four grams or more but less

than 200 grams[.]” See Tex. Health & Safety Code Ann. § 481.115(a), (d). To

establish Waldrup committed the offense of possession of a controlled substance,

the State had to prove that Waldrup exercised care, custody, control, or management

over the cocaine and knew the substance was cocaine. See id. §§ 481.002(38);

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481.115(a); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App.

2005), abrogated on other grounds by Robinson v. State, 466 S.W.3d 166, 173 &

n.32 (Tex. Crim. App. 2015). The evidence must show Waldrup’s connection with

the cocaine was more than just fortuitous, and we apply an “affirmative links”

analysis. See Poindexter, 153 S.W.3d at 405–06. When a defendant does not have

exclusive possession of the place where the controlled substance is discovered, facts

beyond “mere presence” must link him to the illegal substance. Tate v. State, 500

S.W.3d 410, 413–14 (Tex. Crim. App. 2016). The non-exclusive factors that may

establish an affirmative link between a defendant and the substance are:

“(1) the defendant’s presence when a search is conducted; (2) whether
the contraband was in plain view; (3) the defendant’s proximity to and
the accessibility of the narcotic; (4) whether the defendant was under
the influence of narcotics when arrested; (5) whether the defendant
possessed other contraband or narcotics when arrested; (6) whether the
defendant attempted to flee; (7) whether the defendant made furtive
gestures; (8) whether there was an odor of contraband; (9) whether
other contraband or drug paraphernalia were present; (10) whether the
defendant owned or had a right to possess the place where the drugs
were found; (11) whether the place where the drugs were found was
enclosed; (12) whether the defendant was found with a large amount of
cash; and (13) whether the conduct of the defendant indicated a
consciousness of guilt.”

Id. at 414 (quoting Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App.

2006)) (other citation omitted). The State need not prove exclusive possession of the

contraband, as control may be jointly exercised by more than one

person. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).

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 The position of individuals in a vehicle is often relevant to determining who

has possession of contraband in a car. At trial, officers testified that Waldrup was

sitting in the passenger seat of the vehicle. Officers said they found the cocaine and

pills in a sunglass case on the passenger floorboard. Officers also found a Quality

Inn hotel key card in the car, and the jury heard testimony that marijuana was

scattered on the floorboard. Photographs, which were admitted at trial, aligned with

the officers’ testimony. Detective Jordan testified there was an odor of unburnt

marijuana coming from the vehicle. Sergeant Hahs testified that Waldrup admitted

that he and Thomas (the driver of the car) had smoked marijuana earlier that day.

In the subsequent search conducted by police of the cells phones that were in

the car, they found further evidence linking Waldrup to the cocaine found on the

passenger side of the car. According to the officers who conducted the investigation,

the “selfie” photographs found on the Samsung J737T1 phone were photos of

Waldrup. Text messages on the same J737T1 phone referred to the individual who

possessed the phone as “Dewayne.” The J787T1 phone, which the testimony of the

officers tied to Waldrup, contained text messages that linked it to the hotel key card.

Officers testified that Xanax “bars” were found among the pills in the eyeglass

container, which as mentioned also contained cocaine. A recorded conversation

between Waldrup and his girlfriend from the jail was admitted in evidence. In the

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recording, Waldrup’s girlfriend asked him if he was charged with possession of the

pills, and he said that he was.

When viewed as a whole, there are facts beyond Waldrup’s “mere presence”

at the scene that are sufficient to affirmatively link him to the cocaine the police

found in the car Thomas was driving that day. See Tate, 500 S.W.3d at 413–14. Thus,

“[b]ased on the combined and cumulative force of the evidence and any reasonable

inferences therefrom,” the jury was “rationally justified in finding guilt beyond a

reasonable doubt[.]” Id. at 414 (citing Jackson, 443 U.S. at 318–19). The trial court

did not err in denying Waldrup’s Motion for Directed Verdict. We overrule issue

two.

Issue One: Denial of Motion to Dismiss Without a Hearing

In his first issue, Waldrup complains the trial court violated his constitutional

right to due process when it refused to conduct a hearing on his Motion to Dismiss.

An evidence and discovery log shows that Waldrup received Walmart videos on

April 17, 2020. In his brief, Waldrup points to a motion to dismiss, filed on August

31, 2020, in which he complained that in a prior hearing, he had made known to the

court that the State was claiming several videos with images from the scene of his

arrest had either been lost or destroyed, specifically a Walgreen’s parking lot video,

dash-cam videos from two patrol cars, and the body-cam videos from the two patrol

officers who came to the scene. Waldrup’s motion argues the State violated Brady

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v. Maryland by failing to preserve these videos, which he claims contained either

exculpatory or impeachment evidence. However, Waldrup’s motion doesn’t explain

what the videos that he claims the State had in its possession but were destroyed

might have shown that would have been relevant to a fact of consequence as related

to his defense.

The State filed a Response to Waldrup’s motion to dismiss on August 31,

2020. In its Response, the State argued that Brady applies to material that is “known

to the prosecutor but unknown to the defense[,]” the videos Waldrup was seeking

were not in the possession of the State, and that the State had complied with its

discovery obligation by producing “all relevant evidence in the State’s possession.”

Based on an electronic docket entry on the docket sheet on August 31, 2020, the trial

court denied Waldrup’s motion to dismiss based on the allegations in the pleadings

without conducting a hearing.

Subsequently, the record shows the State supplemented discovery with

several additional videos it obtained prior to trial: (1) a supplemental Walgreens

video, released by the State on July 28, 2020; (2) a Liberty County video, labeled

evading, released January 29. 2021; (3) a Shell surveillance video, released February

25, 2021.

Waldrup doesn’t claim that he didn’t know video footage existed from various

cameras on the scene. Instead, his complaint was that the videos weren’t preserved.

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That complaint, which requires the defendant to show the police acted in bad faith,

raises a complaint under Arizona v. Youngblood, 488 U.S. 51, 58 (1988). The trial

court conducted a hearing on Waldrup’s Youngblood motion in a separate hearing

during the trial and denied the motion after finding that Waldrup had failed to make

“a showing of bad faith on the part of the State.” Waldrup doesn’t complain about

that ruling in his appeal.

We conclude Brady doesn’t apply to the evidence that Waldrup complained

of in his motion to dismiss because he was aware videos existed after his arrest that

had captured the scene. Thus, the issue was whether the videos still existed, and

whether the State had them and destroyed them in bad faith. In other words, the fact

the videos existed at one time was known to the defense. For that reason, we

conclude Brady doesn’t apply to the evidence Waldrup complained the State

destroyed in his motion to dismiss. United States v. Agurs, 427 U.S. 97, 103

(explaining that Brady claims involve “the discovery, after trial, of information

which had been known to the prosecution but unknown to the defense”); accord

Lawrence v. Lensing, 42 F.3rd 255, 257 (5th Cir. 1994); United States v. Scott, 524

F.2d 465, 467 (5th Cir. 1975). Thus, assuming that Waldrup had a right to be present

when the trial court ruled on his motion, his presence would not have made a

difference in the court’s ruling since Waldrup’s motion didn’t allege facts stating a

Brady claim. We hold the trial court error, if any, in failing to conduct a hearing in

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Waldrup’s presence before denying his motion to dismiss was harmless. Tex. R.

App. P. 44.2. We overrule Waldrup’s first issue.

Issue Three: Jury Charge and Denial of Voluntariness Instruction

In his third issue, Waldrup argues that the trial court erred by refusing his

proposed application paragraph in the jury charge which incorporated the issue of

“voluntariness.” The court’s jury charge reads as follows:

The following definitions apply in regard to the law concerning
the Possession of a Controlled Substance. The definition of a term
applies to each grammatical variation of the term.
“Possession” means actual care, custody, control, or
management. Possession is a voluntary act if the possessor knowingly
obtains or receives the thing possessed or is aware of his control of the
thing for a sufficient time to permit him to terminate his control.
“Adulterant or dilutant” means any material that increases the
bulk or quantity of a controlled substance, regardless of its effect on the
chemical activity of the controlled substance.
A person acts intentionally, or with intent, with respect to the
nature of this conduct when it is his conscious objective or desire to
engage in the conduct.
A person acts knowingly, or with knowledge, with respect to the
nature of his conduct or to circumstances surrounding his conduct when
he is aware of the nature of his conduct or that the circumstances exist.

Applying the Law on Possession of a Controlled Substance to This
Case
Now, if you find from the evidence, beyond a reasonable doubt
that in Montgomery County, Texas, on or about October 25, 2019, the
defendant, DEWAYNE LEE WALDRUP, did then and there
unlawfully, intentionally or knowingly possess a controlled substance,
namely, cocaine, of four grams or more but less than 200 grams,
including any adulterants or dilutants then you will find the defendant
guilty as charged in the indictment.

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 Unless you so find from the evidence beyond a reasonable doubt,
or if you have a reasonable doubt thereof, you will acquit the defendant
and say by your verdict “Not Guilty.”

During the charge conference, Waldrup requested the following application

paragraph:

Therefore, if you find from the evidence beyond a reasonable doubt that
on or about October 25, 2019, in Montgomery County, Texas, cocaine
was found in a 2019 Ford Explorer inside of a closed container; but you
further find from the evidence that the Defendant did not voluntarily
possess the cocaine, or if the prosecution has failed to persuade you
beyond a reasonable doubt that the Defendant did voluntarily possess
the cocaine, as that term has been previously defined, you will acquit
the Defendant and say by your verdict “not guilty.”

During trial, Waldrup argued that he wanted the application paragraph to address

voluntariness because “the amount of time that knowledge may have been

established was brought up with one of the witnesses.” The trial court rejected

Waldrup’s proposed application paragraph, noting that the application paragraph the

court used “reads intentionally or knowingly possess a controlled substance and the

definitions are before the application paragraph and the definition for possession

tracks the penal code, specifically 6.01, as to that term and how it’s defined.” The

State counters that none of the evidence raised the issue of voluntariness.

A claim of jury charge error involves a two-step analysis. See Alcoser v. State,

663 S.W.3d 160, 165 (Tex. Crim. App. 2022). We first determine whether the charge

is erroneous, then if so, we decide whether the appellant was harmed by the

erroneous charge. See id.; Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App.
22
2013). There are two standards of review for charge error claims. Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g); see also Alcoser, 663

S.W.3d at 165. Where, as here, a defendant timely objects to the alleged error, the

record must only show “some harm” to obtain relief. See Alcoser, 663 S.W.3d at

165; Almanza, 686 S.W.2d at 171.

In his brief, Waldrup contends that “the defense asserted the voluntariness

aspects of the allegation” and points to statements he made in closing arguments

where he focuses on “knowingly” and being “aware” and in “control.” A defendant

is entitled to instructions on any defensive issue “raised by the evidence,” no matter

how weak. See Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013)

(emphasis added). Waldrup asserts that his closing raised this issue; however, as

Texas courts have acknowledged, jury arguments are not evidence. See, e.g., Gelinas

v. State, 398 S.W.3d 703, 707 (Tex. Crim. App. 2013) (citation omitted); Gonzales

v. State, 474 S.W.3d 345, 350 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).

The purpose of the jury charge is to instruct the jurors on all the law that is

applicable to the case. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App.

2012). The application paragraph applies the pertinent law, abstract definitions, and

general legal principles to the particular facts and the allegations in the indictment.

Id. The court did not err in refusing Waldrup’s requested application paragraph, as

23
it did not incorporate correct statements of the law or apply the law to the facts of

the case as raised by the evidence and charged in the indictment. See id.

The abstract definitions contained in the court’s charge to the jury correctly

defined possession as “actual care, custody, control, or management” and explained

that “possession is a voluntary act if the possessor knowingly obtains or receives the

thing possessed or is aware of his control of the thing for a sufficient time to permit

him to terminate his control.” Tex. Penal Code Ann. §§ 1.07(a)(39) (defining

possession), 6.01(b) (explaining possession as a voluntary act). The charge also

correctly defines “intentionally” and “knowingly.” See id. § 6.03(a), (b). After

defining intentionally and knowingly, and explaining when possession constitutes a

voluntary act, the trial court submitted an application paragraph in the charge that

tracks the statutory language for the offense of possession of a controlled substance

based on the allegations in Waldrup’s indictment. See Tex. Health & Safety Code

Ann. § 481.115(a), (d); see Vasquez, 389 S.W.3d at 366. In the application

paragraph, the trial court further instructed the jury that if they did not so find or if

they had reasonable doubt, they must acquit Waldrup. We conclude that Waldrup’s

third issue complaining about charge error lacks merit, so the issue is overruled.

Issues Four and Five: Denial of Motions to Recuse without Hearings

In issues four and five, Waldrup complains the regional presiding judge erred

by denying his motions to recuse without a hearing, which violated his Fourteenth

24
Amendment due process rights. Waldrup argues that a hearing is mandatory under

Texas Rule of Civil Procedure 18a(g)(6)(A), because he complied with the

requirements of Rule 18a. See generally Tex. R. Civ. P. 18a.

Rule 18a governing recusal procedures applies in criminal cases. Arnold v.

State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993). We review an order denying a

motion to recuse for an abuse of discretion. See Tex. R. Civ. P. 18a(j)(1)(A). Rule

18a provides that a motion to recuse:

(1) must be verified;
(2) must assert one or more of the grounds listed in Rule 18b;
(3) must not be based solely on the judge’s rulings in the case; and
(4) must state with detail and particularity facts that:
(A) are within the affiant’s personal knowledge, except that facts
may be stated on information and belief if the basis for that belief is
specifically stated;
(B) would be admissible in evidence; and
(C) if proven, would be sufficient to justify recusal or
disqualification.

Tex. R. Civ. P. 18a(a). A presiding judge may deny a motion to recuse without a

hearing if the motion fails to comply with Rule 18a. See Tex. R. Civ. P.

18a(g)(3)(A).

In September 2020, Waldrup filed his first Motion for Recusal and generally

alleged bias against him personally, against pro se defendants, and African

Americans. In support of this, he complains about the trial court’s rulings regarding

his right to self-representation, and he attached an affidavit to support his motion to

25
recuse. In the affidavit, Waldrup alleged that the trial judge allowed an ex parte

communication, but he does not say who was there, when it occurred, or what was

supposedly discussed. Still, Waldrup claims that had he had been given a hearing,

he would have been able to put on evidence about this alleged communication.

When the motion was filed, the trial court sent it to the regional presiding

judge, who denied it without a hearing. See Tex. R. Civ. P. 18a(f)(1). That was

appropriate, since the rule that applies to motions to recuse a trial court judge

requires the motion to state “with detail and particularity” facts within the movant’s

personal knowledge that “if proven, would be sufficient to justify recusal[.]” See

Tex. R. Civ. P. 18a(a)(4)(A)–(C). Since Waldrup’s Motion for Recusal and

supporting affidavit failed to comply with the requirements of Rule 18a(a)(4), the

regional presiding judge did not err in denying Waldrup’s first Motion for Recusal

without conducting an evidentiary hearing. See Tex. R. Civ. P. 18a(g)(3)(A). We

overrule issue four.

On May 10, 2021, Waldrup filed his second Motion for Recusal, which the

regional presiding judge also denied without a hearing. In his second motion for

recusal, Waldrup filed an affidavit alleging that he filed a 42 U.S. §1983 lawsuit

against the trial judge, claiming she was involved in a conspiracy to violate his civil

rights, that caused the judge to have a financial interest in the outcome of Trial Court

Cause Number 20-10-12141-CR. His second Motion for Recusal also asserted that

26
the trial judge “displayed a questionable[] and concerning level of hostility” towards

him and she abused her discretion by denying his motions to recuse; however, he

didn’t specify any particular motion or ruling.

That he sued the trial judge alleging a conspiracy without more would not

justify recusing the trial court, even considering the facts Waldrup included in the

affidavit he filed with his initial motion to recuse. See In re Lincoln, 114 S.W.3d

724, 727 (Tex. App.—Austin 2003, orig. proceeding) (“Suing a judge by itself is an

insufficient basis for disqualification or recusal of that judge.”); see

also Chamberlain v. State, 453 S.W.2d 490, 492 (Tex. Crim. App. 1970) (“If the

mere filing of a civil action against the judge presiding at a criminal case would

disqualify him, then any judge would be subject to disqualification at the whim of a

defendant.”). In Lincoln, where a party similarly sued the judge then claimed that

meant the judge had a financial interest in the case, the Austin Court of Appeals

concluded that the regional presiding judge was well within his discretion to deny

the motion to recuse without a hearing. See id. Moreover, “judicial rulings alone

almost never constitute a valid basis for a bias or partiality motion.” Liteky v. U.S.,

510 U.S. 540, 555 (1994).

Just like Waldrup’s first motion to recuse, the second motion he filed seeking

to recuse the trial court failed to comply with the requirements of Rule 18a. The

affidavit accompanying his motion doesn’t state with “detail and particularity” facts

27
that, if true, would justify the trial court’s recusal. See Tex. R. Civ. P. 18a(a)(4)(A)–

(C). Accordingly, the regional presiding judge did not err by denying Waldrup’s

second Motion for Recusal without conducting an evidentiary hearing. We overrule

issue five.

Issue Six: Granting the State’s Motion to Quash Subpoena of Magistrate

Waldrup next argues that the trial court “violated [his] Sixth Amendment right

to compulsory process, a fair trial, and his Fourteenth Amendment right to due

process when it granted the State’s Motion to Quash Defendant’s Subpoenas and did

not compel judicial testimony where extraordinary circumstances existed.” Waldrup

subpoenaed witnesses to testify at the hearing on his Motion to Suppress, including

Associate Judge Damico, the magistrate who oversaw Waldrup’s probable cause

hearing. Waldrup argued that the form used by the magistrate during the probable

cause hearing did not have a check in the space next to “probable cause found,” so

that meant Judge Damico did not properly determine probable cause. Therefore, he

argued extraordinary circumstances existed to justify the trial court issuing a

subpoena to compel Judge Damico to appear and testify at his trial.

The State moved to quash the subpoena of Judge Damico and argued the blank

form did not mean the judge, who was acting as a magistrate, failed to determine

that probable cause existed to justify Waldrup’s arrest. On the contrary, the State

argued that the trial court set bonds on Waldrup’s three charges, and that he allowed

28
two of those to be set at “no bond,” which demonstrated that Judge Damico had, in

fact, found probable cause to support Waldrup’s arrest. The State further argued that

since Judge Damico determined probable cause existed to justify his detention and

set bonds, he had complied with Texas Code of Criminal Procedure article 15.17.

See Tex. Code Crim. Proc. Ann. art. 15.17(a) (requiring appearance before a

magistrate within forty-eight hours). At the hearing on the Motion to Quash, as an

alternative to Judge Damico, the State offered the testimony of the Assistant District

Attorney (“ADA”) who attended and handled the probable cause docket on whether

a probable cause determination was made. The form used by the magistrate, which

is dated October 26, 2019, shows that a bond of $750 was set on the misdemeanor

charge and that Judge Damico ordered “no bond” as to two of the charges. The trial

court granted the State’s Motion to Quash, finding Waldrup had not shown

extraordinary circumstances existed that would compel a judge to testify.

At the later hearing on the Motion to Suppress, ADA Barnett testified that

while he did not recall this specific case, the fact that Judge Damico set bond on the

three charges indicated that he had determined that probable cause existed to support

Waldrup’s arrest. Barnett explained that the State’s recommendation was no bond

on the two felonies, and the form noted Waldrup was a habitual felon. Barnett also

testified that he had never seen Judge Damico set bond in a case and continue to

keep the defendant in custody unless he found probable cause existed. According to

29
Barnett, had Judge Damico concluded probable cause didn’t exist, Waldrup would

have been released and the Judge would not have set bonds. Barnett added that “in

this case, it’s obvious that Judge Damico found there was probable cause because he

did set bond on these cases.”

We review a trial court’s ruling on a motion to quash a subpoena for an abuse

of discretion. See Drew v. State, 743 S.W.2d 207, 225 n.11 (Tex. Crim. App. 1987);

Torres v. State, 424 S.W.3d 245, 261 (Tex. App.—Houston [14th Dist.] 2014, pet.

ref’d). “[C]ourts have refused to issue subpoenas for judges to testify about the

mental processes by which they reached a decision ‘absent extreme and

extraordinary circumstances.’” Fears v. State, 479 S.W.3d 315, 335 (Tex. App.—

Corpus Christi-Edinburg 2015, pet. ref’d) (quoting Gary W. v. State of La., Dep’t of

Health & Human Res., 861 F.2d 1366, 1369 (5th Cir.1988)). Such is not the case

before us, since the State offered an ADA who routinely handled the probable cause

docket and did so on the day Waldrup appeared before Judge Damico as a substitute

witness. See id.; Waller v. State, No. 01–02–00799–CR, 2004 WL 306032, at *4

(Tex. App.—Houston [1st Dist.] Feb. 19, 2004, no pet.) (mem. op., not designated

for publication) (concluding extraordinary circumstances did not exist justifying

judge’s testimony where another witness could testify about the issue).

We hold the trial court did not abuse its discretion in quashing the subpoena

of Judge Damico when an alternate witness was available to testify and thus

30
extraordinary circumstances did not exist that would warrant compelling the judge

to testify. See Torres, 424 S.W.3d at 261; see also Fears, 479 S.W.3d at 335; Waller,

2004 WL 306032, at *4. We overrule Waldrup’s sixth issue.

Issues Seven, Eight and Nine: Probable Cause

In issues seven, eight and nine, Waldrup contends the trial court should have

suppressed evidence resulting from his arrest, including seized cell phones, because:

he did not receive a probable cause determination within forty-eight hours; probable

cause did not support his arrest before the vehicle search; and there was not probable

cause to believe the seized cell phones were contraband.

Waldrup filed a Motion to Suppress before trial, seeking to exclude the

evidence seized from the vehicle and any evidence downloaded later from the cell

phones. In the Motion, although he acknowledged that he appeared before the

magistrate who set bail the day after his arrest, he argued the magistrate did not make

an independent probable cause determination. He also argued that he was illegally

detained, and the search and seizure of the vehicle were illegal. The trial court

conducted a hearing on Waldrup’s Motion to suppress, and the State stipulated that

it was a warrantless arrest.

At the suppression hearing, Waldrup called Thomas to testify, and he testified

Waldrup was with him on October 25. Thomas testified he recalled “officers

jumping out” and “told us to get out of the vehicle,” then immediately placed them

31
in handcuffs and put them in the vehicle right after placing them in handcuffs. He

said he was in exclusive control of the vehicle, and nobody asked for consent to

search it. Thomas testified that officers claimed they found fraudulent paperwork

and a controlled substance inside his vehicle. Thomas further testified a bag of

marijuana was in the back seat of the car, which was rented by Claudia Davidson.

The State then called ADA Barnett, who provided the testimony described in

issue six above. The State’s next witness in the suppression hearing, Detective

Jordan, testified that he participated in the bank-jugging operation at Chase Bank in

New Caney. Jordan described bank-jugging as involving someone who watches a

bank and follows people who have something of value and attempts to break into the

victim’s vehicle to steal what is of value, which is what it appeared the suspect

vehicle tried to do twice without success. During the operation, the suspect vehicle

parked at Chase Bank caught their attention, because it was occupied by two people

who did not exit the vehicle for an extended period. Jordan explained that the suspect

vehicle followed two vehicles from Chase Bank, which was suspicious, and then

returned to the bank.

Jordan then testified that they decided to have an officer in plain clothes enter

the bank and come out with a bank envelope, then drive to the Walmart in New

Caney to see if the suspect vehicle would follow him. He listened on the radio, and

once the decoy officer was deployed, Jordan moved to the Walmart parking lot to

32
observe the other vehicle and assist where needed. Jordan observed the decoy officer

park at Walmart, then “the suspect vehicle pulled into the parking lot and backed in

next to the undercover vehicle[.]” Jordan then witnessed the driver exit the suspect

vehicle, and “it appeared that he was attempting to get into the undercover vehicle.”

He explained that “it looked like [the driver] was getting into the vehicle – trying to

break the window or do something – messing with the door.” Jordan said, “I actually

thought he did get into the vehicle, and I believe I aired on the radio that he made

entry into the vehicle.” Marked and unmarked units converged on the vehicle, and

they detained the suspect vehicle’s occupants. They determined Thomas was the

driver, and Waldrup was the passenger.

Jordan testified that as he approached the suspect vehicle, Thomas and

Waldrup had already been taken out of the vehicle, and he could smell the odor of

unburnt marijuana. After that, they searched the suspect vehicle and located three

cell phones, marijuana, pills, powder cocaine, and crack cocaine. They also located

another cell phone on the person of one of the suspects.

Deputy Thomas Epperson also testified during the suppression hearing.

Epperson was assigned to the Auto Theft Task Force and participated in the bank-

jugging operation in a marked unit. Epperson did not personally observe anything

before the arrests, and his primary role was the follow-up investigation. Epperson

obtained four cell phones and a search warrant to have the phones searched, and a

33
signed copy of the warrant was introduced into evidence at the hearing. Epperson

explained that a rental company owned the suspect vehicle, and he contacted their

loss prevention manager. He explained that the manager advised that the rental

period for the vehicle terminated, and after that, the manager gave signed consent to

search the vehicle. Deputy Epperson testified that CSI Tim Slusher later searched

the cell phones, and Lawrence Potier searched the vehicle’s infotainment system.

Turning to the arguments Waldrup made in the hearing, he claimed that while

ADA Barnett testified about the magistrate’s normal practices, the form he ordinarily

used in making his determination was left blank, so no probable cause determination

had been made. For that reason, Waldrup continued, Judge Damico’s testimony was

material. Waldrup also argued there was no consent to search, he was arrested

immediately and placed in a patrol car, and officers decided to search the car to

satisfy their suspicion but had no details to justify the search. Finally, as to the cell

phones, Waldrup argued that the affidavit for the search warrant does not state who

they belonged to, officers had no details or specifics to tie a specific phone to him,

and the search they were conducting was merely a fishing expedition for evidence

of a crime.

The State disagreed, countering first that the evidence of the magistrate’s

practice, and the bond he set, would not have been done had Judge Damico not

determined probable cause existed to support Waldrup’s arrest within forty-eight

34
hours of when it occurred. Second, as to the warrantless arrest and search of

Thomas’s car the State argued reasonable suspicion of criminal activity supported

the magistrate’s decision to authorize the search, as required by Terry v. Ohio. The

investigating officers had evidence that Waldrup was suspected of participating in

the two prior, potential “jugging” incidents, along with co-defendant, Thomas,

which allowed for a reasonable search of the suspects under Terry. In Waldrup’s

case, the State argued it was apparent that the attempted burglary of a vehicle was

imminent or in progress, so officers detained the suspects. Officers then searched the

vehicle after smelling the odor of marijuana, all circumstances that when considered

together established probable cause given the recent criminal activity in the vehicle

and the fact that vehicles, because they are mobile, may be searched without a

warrant when police reasonably believe they contain evidence of a crime. Officers

searched the vehicle and seized items as instruments or evidence of criminal activity

including four cell phones, three in the vehicle and one on the person of the suspects.

Later, police obtained a warrant to authorize the search of the phones. Third, with

respect to the infotainment system of the car, the rental company that owned the car

gave police a signed consent to search the system once the rental period on the car

expired.

The trial court denied the Motion to Suppress and made these findings orally:

1) Judge Damico made a timely probable cause determination, and the fact that he

35
set bail shows this, had he not found probable cause, Waldrup would have been

released; 2) as to the warrantless search, the trial court found that a valid exception

or reasonableness existed for the search and seizure; and 3) as to the search of the

cell phones, the application and warrant were admitted into evidence, and there was

no showing on behalf of Waldrup that the warrant was invalid.

On appeal, this matter was abated and remanded to allow the trial court to

make written Findings of Fact and Conclusions of Law. Those Findings of Fact and

Conclusions of Law state:

FINDINGS OF FACT
1. On October 6, 2020, the defendant was charged by indictment with
possession of a controlled substance.
2. On May 21st, 2021, the defendant filed a motion to suppress evidence
obtained as a result of an illegal detention, search, and seizure.
3. On May 25th, 2021, a jury was selected and sworn in the above-styled
cause.
4. Prior to the presentation of evidence to the jury, this Court held a
hearing on the defendant’s May 21st, 2021 motion to suppress.
5. Frank Barnett, with the Montgomery County District Attorney’s
Office, testified at the hearing on the motion to suppress. Barnett’s
testimony was credible.
6. On October 25th, 2019, the defendant was magistrated by the
Honorable Paul Damico, who found that probable cause existed to hold
the applicant on three charges.
7. Judge Damico set bonds for all three charges.
8. Detective John Jordan with the Montgomery County Sheriff’s
Department testified at the hearing on the motion to suppress. Jordan’s
testimony was credible.
9. On October 25th, 2019, Jordan was watching the Chase Bank in New
Caney, Texas along with other units.
10. While watching the bank, Jordan noticed a black Ford Explorer
(suspect vehicle) with Tennessee plates that had been in the bank

36
parking lot for an extended period of time and that was occupied by two
people, but neither occupant had exited the vehicle.
11. Jordan observed the suspect vehicle follow two other vehicles out
of the parking lot. Jordan was looking for vehicles that followed other
cars out of the parking lot as this was a sign of a criminal scheme known
as bank jugging. Jordan observed the suspect vehicle return to the bank
parking lot after following those other two vehicles out.
12. Jordan knew through training and experience that bank jugging is a
scheme involving following people who leave banks with money and
then later breaking into their vehicles and stealing the money.
13. The suspect vehicle followed an undercover officer’s vehicle from
the bank parking lot to a Walmart parking lot.
14. Jordan observed the driver of the suspect vehicle exit the suspect
vehicle and attempt to enter the undercover officer’s vehicle.
15. When the driver of the suspect vehicle attempted to enter the
undercover officer’s vehicle, marked and unmarked units arrived and
placed the driver and the other occupant of the suspect vehicle into
custody.
16. The driver of the suspect vehicle was David Thomas. The other
occupant was the defendant, Dewayne Waldrup.
17. Thomas testified at the hearing on the motion to suppress. Thomas’s
testimony was not credible.
18. When Jordan approached the suspect vehicle he observed the odor
of unburnt marijuana coming from the vehicle.
19. Jordan recognized the odor of unburnt marijuana through his
training and experience as a law enforcement officer.
20. Jordan and other officers searched the suspect vehicle.
21. Jordan and other officers recovered three cell phones, marijuana,
pills, powder cocaine, and crack cocaine.
22. Deputy Thomas Epperson with the Montgomery County Sheriff’s
Office testified at the hearing on the motion to suppress. Epperson’s
testimony was credible.
23. The cell phones taken from the suspect vehicle were searched
pursuant to a valid search warrant signed by Judge Damico.
CONCLUSIONS OF LAW
1. Jordan and other officers on scene had reasonable suspicion to detain
Thomas and the defendant based on Jordan’s observation that Thomas
attempted to break into an undercover officer’s vehicle. See
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2014)
(“Under the Fourth Amendment, a warrantless detention of the person
37
 that amounts to less than full-blown custodial arrest must be justified
by a reasonable suspicion.”).
2. The defendant failed to show that the search warrant authorizing the
search of the cell phones taken from the suspect vehicle was defective.
See Davis v. State, 202 S.W.3d 149, 157 (Tex. Crim. App. 2006).

We review rulings on motions to suppress under a bifurcated standard. Lerma

v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018); Dugar v. State, 629

S.W.3d 494, 497 (Tex. App.—Beaumont 2021, pet. Ref’d). We give almost total

deference to the trial court’s findings of fact and review its application of law to the

facts de novo. See Martin v. State, 620 S.W.3d 749, 759 (Tex. Crim. App.

2021) (citation omitted). We review de novo whether a specific search or seizure

was reasonable. See Igboji v. State, No. PD-0936-20, 2023 WL 2396388, at *4 (Tex.

Crim. App. Mar. 8, 2023). In a motion to suppress hearing, “the trial judge is the

sole trier of fact and judge of credibility of witnesses and the weight to be given to

their testimony.” Lerma, 543 S.W.3d at 190. When, as here, the trial court issues

findings of fact, we review the record in the light most favorable to the trial court’s

ruling and uphold those findings if the record supports them. See Martin, 620

S.W.3d at 759 (quoting State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App.

2017)). We will uphold a trial court’s ruling if correct under any applicable theory

of law and reasonably supported by the record. See id.; State v. Ruiz, 581 S.W.3d

782, 785 (Tex. Crim. App. 2019).

38
 In issue seven, Waldrup asserts the trial court should have suppressed

evidence, including the seized cell phones, because he did not receive a probable

cause determination within forty-eight hours of his arrest. This argument lacks merit.

As discussed in issue six above, despite Waldrup’s argument to the contrary, a

magistrate made the requisite probable cause determination within forty-eight hours

of his arrest. In his Motion to Suppress, Waldrup acknowledged that he appeared

before the magistrate the day after his arrest. He added that the magistrate “set bail

in the misdemeanor offense” and “denied bail for both felony offenses[.]” The record

supports this conclusion in the form of the documentary evidence showing that

Waldrup appeared before a magistrate the day after his arrest. It is reinforced by the

ADA’s testimony at the suppression hearing that the magistrate would not have set

bond on the one charge and determined Waldrup should be held without bail on the

other two charges unless the magistrate determined probable cause existed. We

overrule issue seven.

In issue eight, Waldrup argues that the trial court should have suppressed the

evidence gathered from the vehicle, because probable cause did not support his arrest

before the vehicle was searched. In support of this contention, he also complains that

since the State noted “an arrest occurred” rather than a detention, it is estopped from

arguing differently on appeal, and Waldrup points to statements made by counsel

during opening arguments and a mention of an arrest during a bail hearing.

39
 We first address Waldrup’s judicial estoppel argument. “Judicial estoppel

prohibits a party who has taken a position in an earlier proceeding from subsequently

taking a contrary position.” Hall v. State, 283 S.W.3d 137, 156 (Tex. App.—Austin

2009, pet. ref’d) (op. on reh’g) (citing Pleasant Glade Assembly of God v. Schubert,

264 S.W.3d 1, 6 (Tex. 2008)) (other citation omitted). However, the State presented

evidence and argued repeatedly in the trial court that Waldrup’s initial seizure before

the vehicle search was an investigative detention supported by reasonable suspicion

rather than probable cause. Based on the record before us, we conclude the State is

not estopped from asserting the suspects were detained rather than arrested. See id.

The Fourth Amendment protects against unreasonable searches and seizures.

See U.S. CONST. amend. IV; Villarreal v. State, 935 S.W.3d 134, 138 (Tex. Crim.

App. 1996). “Under the Fourth Amendment, a brief investigatory detention must be

justified by reasonable suspicion.” Matthews v. State, 431 S.W.3d 596, 602–03 (Tex.

Crim. App. 2014) (citations omitted). “A police officer has reasonable suspicion to

detain if he has specific, articulable facts that, combined with rational inferences

from those facts, would lead him reasonably to conclude that the person detained is,

has been, or soon will be engaged in criminal activity.” Derichsweiler v. State, 348

S.W.3d 906, 914 (Tex. Crim. App. 2011) (citing Terry v. Ohio, 392 U.S. 1, 21–22

1968)) (other citations omitted). This is an objective standard which disregards the

officer’s subjective intent and instead looks to whether an objectively justifiable

40
basis existed for the detention. See id. We also look to the totality of the

circumstances, and if combined they “reasonably suggest the imminence of criminal

conduct, an investigative detention is justified.” Id. In other words, the issue is

whether the totality of reliable information provided specific, articulable facts

combined with reasonable inferences derived from those facts, would lead to the

reasonable conclusion that the appellant was committing, or soon would be engaged

in some type of criminal activity. See id. at 915–16.

In examining the trial court’s findings on the Motion to Suppress, we afford

the prevailing party the strongest legitimate view of the evidence. See Wade v. State,

422 S.W.3d 661, 666–67 (Tex. Crim. App. 2013). The evidence supports the trial

court’s findings pertaining to Jordan’s observations of Waldrup’s and Thomas’s

specific behavior which led to the reasonable conclusion that they were committing

or soon would be engaged in criminal activity. See Derichsweiler, 348 S.W.3d at

914. Accordingly, the initial detention as officers began to investigate this conduct

was justified by reasonable suspicion. Matthews, 431 S.W.3d at 602–03.

Courts have held that probable cause exists to search an automobile when the

odor of marijuana is discovered. See Luera v. State, 561 S.W.2d 497, 498 (Tex.

Crim. App. [Panel Op.] 1978) (citing earlier cases); see also Moulden v. State, 576

S.W.2d 817, 820 (Tex. Crim. App. [Panel Op.] 1978) (concluding police officers

had probable cause to search the vehicle after detecting the odor of marihuana);

41
Small v. State, 977 S.W.2d 771, 774 (Tex. App.—Fort Worth 1998, no pet.)

(explaining the odor of marijuana alone is sufficient to constitute probable cause to

search a defendant’s vehicle or objects within the vehicle). Probable cause to search

exists when facts and circumstances within the officer’s knowledge on the scene

would lead a reasonable person to believe that an instrumentality of a crime or

evidence of a crime will be found. Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim.

App. 2005) (citations omitted). The evidence supports the trial court’s finding that

officers smelled the odor of unburnt marijuana coming from the vehicle as they

detained Waldrup and Thomas. Since the initial detention was proper, given that

Jordan detected the odor of marijuana coming from the vehicle, the search of the

vehicle was also proper. See Marsh v. State, 684 S.W.2d 676, 679 (Tex. Crim. App.

1984) (explaining where initial stop was proper, upon the officer smelling marijuana

coming from vehicle, the search was proper). This justified a continued detention

and search of the vehicle.

Waldrup also argues he was arrested without a warrant or probable cause.

Upon finding marijuana and other narcotics in the vehicle, the officers had probable

cause to arrest Thomas and Waldrup without a warrant since they possessed the

contraband in the officers’ presence. See Tex. Code Crim. Proc. Ann. art. 14.01

(providing that an officer may arrest an offender without a warrant if the offense is

committed in his presence); Taylor v. State, 410 S.W.3d 520, 528–29 (Tex. App.—

42
Amarillo 2013, no pet.). We hold Waldrup’s arrest was lawful. We overrule issue

eight.

In issue nine, Waldrup contends that there was not probable cause to believe

the cell phones were contraband, so the seizure of the phones was improper. The cell

phones were not searched until officers obtained a signed warrant, which Waldrup

does not challenge on appeal.

“The ‘plain view’ doctrine permits an officer to seize evidence of a crime

which he sees in plain sight or open view if he is lawfully where he is.” State v. Betts,

397 S.W.3d 198, 206 (Tex. Crim. App. 2013) (citation omitted). The three

requirements to seize an object in plain view are: “First, law enforcement officials

must lawfully be where the object can be ‘plainly viewed.’ Second, the

‘incriminating character’ of the object in plain view must be ‘immediately apparent’

to the officials. And third, the officials must have the right to access the object.”

Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009) (internal citations

omitted); see Betts, 397 S.W.3d at 206.

The first requirement is met since officers lawfully searched the vehicle, as

discussed in issue eight above. See Betts, 397 S.W.3d at 206. The second element

requires a showing only of probable cause that the observed item is incriminating

evidence. Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991) (citation

omitted). “A police officer has probable cause to seize an item if ‘the facts available

43
to the officer would warrant a man of reasonable caution in the belief that certain

items may be contraband or stolen property or useful as evidence of a

crime.’” Williford v. State, 127 S.W.3d 309, 313 (Tex. App.—Eastland 2004, pet.

ref’d) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)). At the suppression

hearing, the State argued that the cell phones were seized as containing “evidence of

criminal activity.” Waldrup contends there was no probable cause to believe the

phones were contraband. However, an item being contraband is not the only reason

giving rise to probable cause. An officer also has probable cause to seize an item if

the facts available to him would lead to the reasonable belief that an item may

contain evidence of a crime. See id. The totality of the facts and circumstances

known to officers would warrant their belief that the cell phones contained evidence

of a crime, thus giving rise to probable cause permitting their seizure. See id.; see

also Derichsweiler, 348 S.W.3d at 914 (discussing collective knowledge doctrine

and explaining the cumulative information known to the officers is considered when

determining reasonable suspicion). Upon their lawful search of the vehicle, officers

found other contraband, including stolen property from another recent bank jugging

and narcotics. The search warrant affidavit for the phones was admitted into

evidence at the suppression hearing in which Epperson outlined the facts leading to

the seizure of the phones. The affidavit also included Epperson’s experience in law

enforcement and the basis for his belief that the cell phones would contain evidence

44
of a crime. This satisfies the second element of the plain view doctrine. See Betts,

397 S.W.3d at 206; Keehn, 279 S.W.3d at 334. Finally, given the officers’ probable

cause to search the vehicle as discussed above, they had the right to seize the cell

phones they believed contained evidence of a crime, thus satisfying the last element

of the plain view doctrine. See Betts, 397 S.W.3d at 206; Keehn, 279 S.W.3d at 334.

We overrule issue nine.

Issue Ten: Appointed Counsel

In issue ten, Waldrup argues the trial court erred by denying his Motion to

Dismiss Court-Appointed Counsel and to replace him with an attorney who would

follow Waldrup’s directions. Waldrup asserts this violated his Sixth Amendment

right to counsel and Fourteenth Amendment right to due process. Specifically, he

argues that he brought the matter to the trial court’s attention, by showing at a

hearing there was good cause given a “complete breakdown in communication[] and

irreconcilable conflict[.]” He complains that his appointed counsel failed to help him

prepare motions to recuse, failed to investigate, and failed to argue his concerns

about “witness intimidation/tampering.”

At various times throughout the proceedings, Waldrup wanted appointed

counsel and then also said he desired to represent himself and waived counsel, and

he also stated he wanted to retain his own attorney. After being appointed counsel

in November 2019, Waldrup signed a waiver of counsel on February 27, 2020, and

45
the trial court admonished him several times about proceeding pro se. Waldrup

proceeded pro se in the trial court until March 1, 2021, when a jury panel was

assembled for voir dire and trial was scheduled to begin. The trial court held a

hearing to address pretrial motions prior to voir dire, including Waldrup’s Motion

for Continuance. When the trial court denied Waldrup’s Motion for Continuance,

Waldrup withdrew his waiver of counsel and said he wanted to retain an attorney,

but alternatively requested appointed counsel. The trial court released the panel. The

trial court then allowed Waldrup a week to retain a lawyer and explained if he could

not, she would make an indigency finding and appoint counsel. On March 10, 2021,

the trial court appointed counsel.

On May 10, 2021, Waldrup filed a Motion to Dismiss Court-Appointed

Counsel, and on May 17, 2021, the trial court held a hearing on the Motion. At the

hearing, Waldrup said he did not wish to proceed pro se but asked the trial court to

appoint someone who would follow his instructions and complained appointed

counsel was “not truly being zealous in his efforts to pursue my defensive theories

and the direction that I repeatedly requested for [him] to go.” Appointed counsel also

explained his position on the strategy Waldrup asked him to employ. Appointed

counsel explained that Waldrup

has filed many motions and continues to draft motions and file them
and wants me to adopt those and argue those and I have argued one or
two of the motions he has filed, but the others I’m not going to adopt
and argue and that has caused a problem. We have a difference of
46
 opinion about the law and the benefits that he can get from those
motions and so because of that, he basically doesn’t respect my opinion
of the law and would ask for a new attorney[.]

The trial court noted, “I’m hearing a difference of opinion as to how your case should

proceed as to your defensive theories and as to possible trial strategy[,]” and

ultimately denied Waldrup’s request to appoint new counsel.

We review a trial court’s ruling on a motion to dismiss appointed counsel for

an abuse of discretion. See Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1990)

(stating that “[a]ppointment of new counsel is a matter solely within the discretion

of the trial court”); see also King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App.

2000) (noting that allowing an attorney to withdraw is in trial court’s discretion).

The Sixth Amendment and the Due Process Clause of the Fourteenth Amendment

guarantee a criminal defendant’s right to counsel. See Thomas v. State, 550 S.W.2d

64, 67 (Tex. Crim. App. 1977). This does not grant a defendant the right to appointed

counsel of his choice. See id. at 68. Appointed counsel may be replaced for good

cause. See Tex. Code Crim. Proc. Ann. art. 26.04(j)(2). “The trial court is under no

duty to search for a counsel until an attorney is found who is agreeable to the

accused.” Solis, 792 S.W.2d at 100 (citations omitted). “[P]ersonality conflicts and

disagreements concerning trial strategy are typically not valid grounds for

withdrawal.” King, 29 S.W.3d at 566; Solis, 792 S.W.2d at 100.

47
 This record established that Waldrup was unhappy because appointed counsel

failed to pursue Waldrup’s desired motions and defensive theories; they disagreed

on the law and the benefits that would be gleaned from pursuing Waldrup’s motions.

In essence, as the trial court recognized, appointed counsel and Waldrup disagreed

about trial strategy, which is typically not a valid basis for withdrawal. See King, 29

S.W.3d at 566; Solis, 792 S.W.2d at 100. We conclude the trial court did not abuse

its direction in denying Waldrup’s Motion to Dismiss Court-Appointed Counsel and

appoint new counsel. We overrule issue ten.

Issue Eleven: Denial of Motion to Dismiss Based on Prosecutorial Misconduct

In his eleventh issue, Waldrup complains the trial court erred by denying his

Motion to Dismiss based on “outrageous prosecutorial misconduct” after his case

was reindicted. Waldrup was originally indicted for possession of a controlled

substance with intent to deliver, a first-degree felony, with two enhancements. See

Tex. Health & Safety Code Ann. § 481.112(a), (d). On October 6, 2020, Waldrup

was reindicted for simple possession, eliminating the intent to deliver element. See

id. § 481.115(d). The reindictment included two enhancement paragraphs. Waldrup

purportedly filed a civil lawsuit in federal court the same day for civil rights

violations alleging there was no probable cause determination within forty-eight

hours of his arrest, so his detention was unlawful.

48
 Shortly before trial, Waldrup filed a pro se Motion to Dismiss for Outrageous

Prosecutorial Misconduct complaining of the reindictment. In the Motion, Waldrup

complained that he was “selectively and vindictively” prosecuted to deter him from

exercising his First Amendment rights in a civil rights suit he filed in federal court

against the Montgomery County Sheriff’s Department and Montgomery County’s

District Attorney’s Office. He also alleged he was “singled out for prosecution

because he is an indigent African American, represented by Court-Appointed

Counsel…and because of the State’s desire to prevent him from exercising his

Constitutionally protected rights in violation of the First, Fifth, and Fourteenth

Amendments to the United States Constitution Due Process, and Equal Protection

of the Law Clauses.” At the hearing on the Motion to Dismiss, Waldrup admitted

the reindictment as evidence and a notice sheet from a federal court filing dated

October 7, 2020, showing that he filed a civil lawsuit on October 6, 2020. The notice

sheet lacks any specifics regarding the time of day the lawsuit was filed, and it does

not show that the State received notice of the lawsuit. Waldrup did not call any

witnesses to testify at the hearing.

In the hearing on Waldrup’s motion, the State responded that Waldrup’s

argument assumes the District Attorney’s Office or the prosecutors or
representatives of the State were aware of his civil suit on the day that
he filed it. And in addition to that, the re-indictment not only was a
lower offense, reduced to 2nd degree, but also eliminated an element of
the offense for the State to prove at trial. And that would be the intent
to manufacture or deliver. Strategic trial reasons was [sic] a cause of
49
 the re-indictment. And I can’t say that . . . the State was even aware of
a civil suit at that point.

Under Texas law, prosecutors have broad discretion in deciding which cases

to prosecute, including whether to prosecute and what charge to file. See Neal v.

State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004) (citations omitted). We must

presume criminal prosecutions are “undertaken in good faith and in

nondiscriminatory fashion[.]” Id. If, however, criminal charges are brought in

retaliation of a defendant’s exercise of his legal rights, that decision to prosecute

violates due process. See id.

A constitutional claim of prosecutorial vindictiveness may be
established in either of two distinct ways: 1) proof of circumstances that
pose a “realistic likelihood” of such misconduct sufficient to raise a
“presumption of prosecutorial vindictiveness,” which the State must
rebut or face dismissal of the charges; or 2) proof of “actual
vindictiveness”—that is, direct evidence that the prosecutor’s charging
decision is an unjustifiable penalty resulting solely from the
defendant’s exercise of a protected legal right.

Id. (quoting U.S. v. Johnson, 171 F.3d 139, 140–41 (2d Cir. 1999); U.S. v. Goodwin,

457 U.S. 368, 380–81 (1982)). The presumption applies in “very few situations” and

“can be overcome by objective evidence in the record justifying the prosecutor’s

action.” Id. at 173–74. Although not applicable here, a recognized situation in which

the presumption of vindictiveness applies is when a defendant proves “he was

convicted, he appealed and obtained a new trial, and that the State thereafter filed a

greater charge or additional enhancements.” Id. at 174. Even a prosecutor’s excuse

50
of “mistake or oversight” is an “objective explanation” that can be sufficient to rebut

a presumption of prosecutorial vindictiveness especially if a prosecutor does not

merely deny his state of mind was motivated by vindictiveness. Hood v. State, 185

S.W.3d 445, 450 (Tex. Crim. App. 2006).

Waldrup seems to argue the presumption of vindictiveness applies, since his

cited authority addressed the presumption, and he asserts the State “failed to

overcome the presumption[.]” He contends the fact that the case was reindicted on

the same day that he filed a federal lawsuit for civil rights violations meant that the

State reindicted him for filing the lawsuit. We disagree. First, Waldrup didn’t suffer

a conviction, appeal and obtain a new trial, and show he was reindicted, evidence of

the sort that in the first instance would be required to raise the presumption of

vindictiveness on which his theory seems to rely. Second, his contention

presupposes that the prosecution had notice of his federal lawsuit before he was

reindicted. While the evidence established that Waldrup filed a civil suit on October

6, 2020, there is no indication what time the suit was filed. It may have been filed

before the reindictment or after the reindictment was filed. Additionally, the notice

itself was dated October 7, 2020, and stated, “Your case has been filed as a Prisoner

Civil Rights Complaint.” The face of the document reveals the notice was sent to

Waldrup, and he did not offer proof at the hearing that it was ever sent to the State

before the reindictment. Finally, the reindictment did not contain a greater charge or

51
increase his punishment range. See Neal, 150 S.W.3d at 174. Rather, it reduced the

charge from a first-degree felony to a second-degree felony, and the added

enhancements made the applicable punishment range identical to the original

indictment. So, we conclude the presumption of vindictiveness does not apply. That

said, the State offered objective evidence that by reducing the charge to simple

possession, the reindictment eliminated one element (intent) it would have to prove

at trial, but the enhancements meant the same punishment range applied and the

reindictment was a strategic decision. On this record, the only evidence shows the

prosecutor’s decision was a matter of trial strategy as it relates to the State’s burden

of proof. Stated another way, Waldrup presented no evidence the State had a

vindictive motive in reindicting him on a reduced charge. See Hood, 185 S.W.3d at

450; Neal, 150 S.W.3d at 174. We overrule issue eleven.

Issues Twelve and Thirteen: Self-Representation and Motion to Quash Indictment

In issue twelve, Waldrup contends the trial court violated his right to self-

representation by delaying a Faretta hearing. Waldrup claims that he asserted his

right to self-representation on November 18 and December 9, 2019, but he did not

sign a waiver of counsel until February 27, 2020. Specifically, he argues that the

delay between asserting his rights and the Faretta hearing effectively denied his right

to self-representation. We do not have the benefit of a Reporter’s Record for the

dates he claims he asserted his right to self-representation. There are notations on a

52
scheduling order in the Clerk’s Record that reflect a Faretta hearing needed to be

scheduled.

“[T]he Sixth and Fourteenth Amendments include a ‘constitutional right to

proceed without counsel when’ a criminal defendant ‘voluntarily and intelligently

elects to do so.’” Indiana v. Edwards, 554 U.S. 164, 170 (2008) (quoting Faretta v.

California, 422 U.S. 806, 807 (1975) (emphasis original)). “[T]he right of self-

representation does not attach until asserted.” Brown v. Wainwright, 665 F.2d 607,

610 (5th Cir. 1982) (citations omitted). A defendant’s request to forgo counsel and

represent himself must be “clear and unequivocal.” Faretta, 422 U.S. at 835. To

ensure protection of the fundamental right to counsel, “courts indulge every

reasonable presumption against waiver of counsel.” Jordan v. State, 571 S.W.2d

883, 884 (Tex. Crim. App. 1978) (citing Johnson v. Zerbst, 304 U.S. 458 (1938))

(other citations omitted). While we recognize that courts should not unduly defer

ruling on a firm request by a defendant to represent himself, we are unaware of any

rule that requires a Faretta hearing to occur within any specific timeframe, nor has

Waldrup pointed us to any such authority. See Brown, 665 F.2d at 612 (noting its

decision should not be read to imply a trial court may unduly defer ruling on firm

request by a defendant to represent himself hoping he will change his mind).

There is no reporter’s record showing Waldrup unequivocally asserted his

right to self-representation before signing the waiver of counsel on February 27,

53
2020. The record is silent about the reasons for any delay. A careful review of his

argument reveals that he apprised his court-appointed counsel of his desire to

represent himself, not the court. Further, beyond notations on a scheduling order,

there is nothing to suggest the context of Waldrup’s statements, or that he had been

admonished and effectively waived his right to counsel. Once Waldrup signed the

waiver of counsel, which occurred less than two months after he was indicted and

more than a year before trial, the trial court permitted him to represent himself. He

was allowed to file motions and attend hearings on those motions during the

proceedings.

He complains that he was harmed given the delay in the Faretta hearing,

which denied him the opportunity to “request an examining trial” prior to being

indicted. See Tex. Code Crim. Proc. Ann. art. 16.01 (providing for an examining

trial in felony cases). The purposes of an examining trail are to: (1) determine

whether sufficient evidence of guilt supports holding a suspect accused of criminal

conduct; (2) to determine if bail should be allowed and if so, the amount; and (3) to

get the testimony of witnesses, including any voluntary statement a suspect wishes

to make. State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 424 (Tex. Crim. App.

1990) (citations omitted). After the grand jury returns an indictment, the question of

whether probable cause exists and the necessity of an examining trial becomes moot.

See Russell v. State, 604 S.W.2d 914, 921 n.12 (Tex. Crim. App. [Panel Op.] 1980)

54
(explaining that once a grand jury returns indictment, the purpose and justification

for the examining trial have been accomplished); Rodriguez v. State, No. 05-14-

01225-CR, 2015 WL 8729283, at *3 (Tex. App.—Dallas Dec. 11, 2015, no pet.)

(mem. op., not designated for publication) (noting that question of sufficient

evidence at examining trial “was rendered moot after grand jury returned the

indictment”). The return of an indictment terminates the right to an examining trial.

State ex rel. Holmes, 784 S.W.2d at 424. The record established that the magistrate

made a probable cause determination, despite Waldrup’s assertion to the contrary.

Later, a Montgomery County grand jury indicted him. Based on this record, he was

not entitled to an examining trial, and the delay in conducting the Faretta hearing

was harmless. See Tex. R. App. P. 44.2(b). We overrule issue twelve.

In issue thirteen, his last issue, Waldrup argues the trial court erred by denying

his Amended Motion to Quash the Indictment without a hearing. The record shows

that the Amended Motion to Quash referenced in his brief and filed on May 27, 2020,

pertained to the original indictment in which he was charged with the first-degree

felony offense of possession with intent to deliver in an amount greater than four

grams but less than 200 grams. On October 6, 2020, a different grand jury reindicted

Waldrup for the second-degree felony offense of possession of a controlled

substance in an amount greater than four grams but less than 200 grams—the offense

55
he was tried and convicted of. The record does not reflect that Waldrup filed a

Motion to Quash after he was reindicted.

A trial court may set any criminal case for a pretrial hearing, including

exceptions to the form or substance of the indictment. See Tex. Code Crim. Proc.

Ann. art. 28.01 § 1(4) (emphasis added). We review a trial court’s decision to rule

on a motion to quash without a hearing for an abuse of discretion. See Hicks v.

State, 508 S.W.2d 400, 403 (Tex. Crim. App. 1974) (citing Tex. Code Crim. Proc.

Ann. art. 28.01); Rodriguez v. State, 491 S.W.3d 18, 26 (Tex. App.—Houston [1st

Dist.] 2016, pet. ref’d). Generally, a trial court is not required to hold a hearing on a

motion to quash, and a trial court’s decision to hold such a hearing is left to its sound

discretion. See Hicks, 508 S.W.2d at 403; Rodriguez, 491 S.W.3d at 26. On this

record, we cannot say the trial court abused its discretion by failing to hold a hearing

on Waldrup’s Amended Motion to Quash the original indictment. See Hicks, 508

S.W.2d at 403; Rodriguez, 491 S.W.3d at 26. His Amended Motion to Quash

addressed the original indictment, and that is not the charge for which he was

convicted. Thus, the error, if any, for failing to hold a hearing on his Amended

Motion to Quash is harmless. See Tex. R. App. P. 44.2(b) (any error that does not

affect substantial rights must be disregarded). We overrule issue thirteen.

56
 CONCLUSION

Having overruled each of Waldrup’s issues, we affirm the trial court’s

judgment.

AFFIRMED.

W. SCOTT GOLEMON
Chief Justice

Submitted on May 16, 2023
Opinion Delivered September 13, 2023
Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.

57