Opinion
No. 05-09-01296-CR
Opinion issued October 28, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 5, Dallas County, Texas, Trial Court Cause No. MA06-34394-F.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
OPINION
Jose Guadalupe Gonzales appeals his conviction for driving while intoxicated. In two issues, appellant contends the trial court erred in denying (1) his motion to suppress evidence and (2) his request for an instruction under article 38.23 of the Texas Code of Criminal Procedure. We conclude the trial court did not err in denying appellant's motion; however, we conclude the trial court did err in failing to give an article 38.23 instruction. Accordingly, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion. Grand Prairie Police Officer Brad Leonard was on patrol at about 2 a.m. on December 31, 2005 when he observed appellant's vehicle make a wide right turn from East Marshall Drive onto Southeast 14th Street. While following appellant, Officer Leonard saw his vehicle drift over the center dividing line into the oncoming traffic lane. Shortly after that, Officer Leonard activated his overhead lights and siren. Appellant drove a short way before pulling into the driveway of his home and stopping. Officer Leonard walked up to appellant's car and asked appellant for his driver's license. Officer Leonard said he smelled alcohol and called for a DWI enforcement unit for assistance. Within minutes, Officer Michael Diaz arrived. Officer Diaz said appellant told him he drank six beers beginning at 8 p.m. After administering three standardized field sobriety tests, Officer Diaz arrested appellant. Appellant testified he was not intoxicated and had not lost the normal use of his mental and physical faculties on the night in question. He also said he did not know why the officer stopped him because he "had made everything properly." He told the jury he had been at a club he owned that night overseeing a party and drank six beers. Appellant filed a motion to suppress. The trial court carried the motion with the trial and allowed appellant to have a continuing objection. After the State rested its case, appellant reurged his motion to suppress, which the trial court denied. (Appellant did not reurge the motion after presenting his case.) Over appellant's objection, the trial court refused to instruct the jury under article 38.23 of the Texas Code of Criminal Procedure. In his first issue, appellant asserts the trial court erred in denying his motion to suppress evidence because of the lack of "sufficient facts available to substantiate a stop of [a]ppellant's vehicle by Officer Leonard." We disagree. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to the trial court's determination of historical facts that depend on credibility and demeanor, but review de novo the trial court's application of the law to the facts. See Guzman, 955 S.W.2d at 89. Because no findings of fact or conclusions of law were filed, we will assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). An officer may lawfully stop and detain a person for a traffic violation. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993). Section 545.101(a) of the Texas Transportation Code provides that when making a right turn at an intersection, "an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway." Tex. Transp. Code Ann. § 545.101 (West 2011). Further, motorists on a roadway having four or more lanes for moving vehicles and providing for two-way movement of vehicles may not drive left of the center line of the roadway except (1) as authorized by an official traffic-control device designating a specified lane to the left side of the center of the roadway for use by a vehicle not otherwise permitted to use the lane; (2) when an obstruction necessitates moving the vehicle left of the center of the roadway; and (3) in crossing the center line to make a left turn into or out of an alley, private road, or driveway. Id. at § 545.051(c), (a)(2). Here, Officer Leonard testified appellant committed two traffic violations. First, he saw appellant make an improper wide right turn from East Marshall onto Southeast 14th Street, which he described as a four-lane road with two northbound lanes and two southbound lanes. Specifically, Officer Leonard said appellant turned into the left inside lane of Southeast 14th, instead of turning into the right lane, which was closest to the curb. Second, Officer Leonard said as appellant proceeded south, his vehicle drifted across the center dividing line into the northbound traffic lane. He saw no obstructions in the roadway to account for the drifting. This testimony was sufficient to raise a reasonable suspicion that appellant had committed at least one traffic violation. Even considering that appellant's testimony contradicted Officer Leonard's, we defer to the trial court's implied findings of historical facts that depend on credibility. Consequently, the trial court did not err in denying appellant's motion to suppress on the basis that sufficient facts did not exist to substantiate a stop. We overrule the first issue. In his second issue, appellant contends the trial court erred by failing to submit an article 38.23 instruction in the jury charge. In particular, appellant argues his testimony raised a fact issue on whether he committed a traffic violation, which was the basis for the stop. We agree. Appellant testified regarding the turn onto Southeast 14th Street. He said he turned on his blinker and turned right on a green light. Appellant was then asked, "And as you made a right did you stay in the right lane?" Appellant responded, "No. I went to the left lane because I was gonna turn left at the following block." Several questions later, defense counsel asked, "Okay. And even when you made that turn off of Marshal onto Southeast 14th, you were turning in the right lane but then you moved over into the left?" Appellant responded, "Yes." As to the second violation, appellant denied that the wheels of his vehicle crossed the center median on Southeast 14th. Finally, he also testified he did not know why he was stopped that night because he "made everything properly." At the conclusion of the evidence after the jury exited the courtroom, the trial court told the lawyers that although he had "already put in the charge on reasonable suspicion," he was removing it because he believed appellant admitted making a wide turn when he "testified that when he made the right turn he turned into the second lane." Defense counsel responded he believed appellant said he "turned into the right lane and moved to the left so he could make the left turn." Defense counsel then objected to the removal of the instruction. Because the trial court believed appellant admitted to having made the wide turn, no reasonable suspicion charge was given on the wide turn or the crossing the center dividing line violation, as "any one of either of them would have been enough" to justify the stop. Article 38.23 provides that when a fact issue exists as to whether evidence was obtained in violation of any provisions of the United States Constitution or laws of the State of Texas, "the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then . . . the jury shall disregard any such evidence so obtained." Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005). A defendant must meet three requirements to trigger an article 38.23 instruction (1) the evidence heard by the jury must raise an issue of fact, (2) the evidence on that fact must be affirmatively contested, and (3) the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). If these requirements are met, a material fact issue is raised and the trial court must include an article 38.23 instruction in the charge. See id.; see also Oursbourn v. State, 259 S.W.3d 159, 181 n. 85 (Tex. Crim. App. 2008). A fact issue about whether evidence was legally obtained may be raised "from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable." Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004). Here, Officer Leonard testified he stopped appellant because he committed two traffic violations. Appellant's testimony, however, contradicted Leonard's regarding whether he committed any traffic violation. Consequently, appellant was entitled to an instruction and the trial court erred in refusing to give one. Having so concluded, we must now determine whether the error caused appellant harm. Although appellant did not present a proposed jury instruction (the trial court already had the instruction in the charge and then removed it), he preserved error by (1) requesting an article 38.23 instruction regarding whether he made a wide turn and crossed the median into the oncoming traffic lane and (2) objecting to the refusal to include an instruction in the charge. See Oursbourn, 259 S.W.3d at 174 (stating defendant must present proposed jury instruction or object to lack of one to preserve error). Therefore, reversal is mandated only if the error is "calculated to injure the rights of the defendant" — the appellant need only demonstrate "some harm" on appeal. The State's evidence came from information obtained by the police as a result of a traffic stop. If the jury believed appellant's testimony that he did not commit any traffic violations, the jury would have been instructed to disregard that evidence. Under these circumstances, we conclude appellant has shown some harm. We sustain appellant's second issue. We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.