Opinion
No. 10-09-00353-CR
Opinion delivered and filed January 12, 2011. DO NOT PUBLISH.
Appealed from the 361st District Court, Brazos County, Texas, Trial Court No. 08-00928-CRF-361. Affirmed.
Before Chief Justice GRAY, Justice DAVIS, and Justice SCOGGINS.
MEMORANDUM OPINION
Wesley Marion Hinds appeals from his conviction for aggravated assault with a deadly weapon. TEX. PEN. CODE ANN. § 22.02 (West 2003). Hinds was sentenced by the trial court to forty years' imprisonment. Hinds complains that the trial court erred by refusing to include an instruction pursuant to article 38.23 of the Code of Criminal Procedure and that the evidence was both legally and factually insufficient to sustain his conviction. Because we find that he was not entitled to the instruction and the evidence was legally sufficient, we affirm the judgment of the trial court.
Jury Charge Error
In his first issue, Hinds complains that the trial court erred by refusing his request to include in the jury charge an instruction based on article 38.23 of the Code of Criminal Procedure.Standard of Review
Our review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009). Initially, we must determine whether error occurred. If so, we must then evaluate whether sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731-32.Preservation of Error
Hinds objected to the lack of an instruction pursuant to article 38.23 at trial because he contended that there was a fact issue regarding the legality of the stop, which was whether Hinds was stopped because he was speeding or because another officer told the arresting officer to stop Hinds. On appeal, he complains that there was a factual dispute regarding whether Hinds was stopped for speeding or because another officer told him to, there was a dispute whether the officer was following the right vehicle prior to the stop, and there was a dispute regarding whether or not Hinds was actually speeding. The State contends that Hinds has waived his complaints that were not made to the trial court. We disagree. Because Hinds is complaining of jury charge error, he can raise the failure to include the instruction for the first time on appeal even if no objection was made; however, the harm analysis would be different for the reasons that were not raised before the trial court. It is true that a defendant who affirmatively states, "no objection," when evidence is offered forfeits his right to complain on appeal that the evidence was illegally obtained under article 38.23. However, a defendant may still request and receive a jury instruction under article 38.23 if the evidence raises a contested factual issue that is material to the lawfulness of obtaining the evidence and the failure to include the instruction may be raised on appeal in the same manner as any other unpreserved charge error. Holmes v. State, 248 S.W.3d 194, 196, 202 n. 32 (Tex. Crim. App. 2008). Therefore, we will address Hinds's issue in its entirety.Article 38.23
Article 38.23(a) of the Code of Criminal Procedure states:(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, 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 and in such event, the jury shall disregard any such evidence so obtained.TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). The Court of Criminal Appeals has held that the second sentence of article 38.23 requires a jury instruction only if there is a genuine dispute about a fact that is material to the admissibility of the challenged evidence. See Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008); Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). Three foundation requirements must be established by a defendant to trigger the necessity for 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 claimed to have been seized illegally. See Oursbourn, 259 S.W.3d at 177; Madden, 242 S.W.3d at 510. This requires that the defendant offer evidence that, if credited, would create a reasonable doubt as to a specific factual matter essential to the admissibility of the challenged evidence. See Oursbourn, 259 S.W.3d at 177; Madden, 242 S.W.3d at 510. This factual dispute can be raised only by affirmative evidence, not by mere cross-examination questions or argument. Oursbourn, 259 S.W.3d at 177; Madden, 242 S.W.3d at 513 nn. 22-23. The jury is to decide only the disputed factual issue — for example, did the officer hold a gun to the defendant's head to extract a confession. Oursbourn, 259 S.W.3d at 177. If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law. The legal question would never go to the jury. Oursbourn, 259 S.W.3d at 177-78. Hinds presented no affirmative evidence relating to the illegality of the stop but merely attempted to show inconsistencies in the testimony between the officers and the arresting officer's inability to determine exactly what rate of speed Hinds was traveling at prior to the stop. We find that there was no affirmative evidence presented to create a factual issue regarding whether or not Hinds was speeding. The Court of Criminal Appeals stated in Oursbourn that in the earlier example regarding holding a gun to the defendant's head to extract a confession, a fact question would be created if there were affirmative testimony that he did indeed hold a gun to the defendant's head, which would then become an issue for the jury to determine. The testimony given by the officer who stopped Hinds was that he believed that Hinds was speeding and that he was not driving reasonably or prudently. Additionally, he had been told to stop the vehicle by another officer. Reasonable suspicion that an individual has committed a traffic offense is all that is required to justify a traffic stop. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The officer testified that the truck Hinds was driving accelerated and the officer then pursued Hinds at a speed of approximately seventy miles per hour for approximately two miles until he caught up to him. The road was curvy and bumpy and it was dark outside. The speed limit was believed to be forty miles per hour on that stretch of road. It is not necessary that the exact speed of a vehicle be established; rather it is a traffic violation to drive at a speed that is not reasonable or prudent given the circumstances. See TEX. TRANSP. CODE ANN. § 545.351(a) (West 1999). There was no disputed fact issue affirmatively raised by Hinds. Therefore, he was not entitled to the submission of the instruction and the trial court did not err by refusing to include it in the jury charge. Issue one is overruled.