Opinion
No. 05-08-01470-CR
Opinion Filed December 11, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-81873-08.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
OPINION
Appellant Andrew Ray Fluharty appeals his conviction for misdemeanor DWI. See Tex. Penal Code Ann. § 49.04 (Vernon 2003). Appellant raises one issue on appeal arguing that the trial court erred when it refused to submit an article 38.23 instruction to the jury. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). We affirm.
Background
The State's Evidence Plano Police Officer Jesse Muse testified that at approximately 1:30 a.m. on March 8, 2008, he was driving on the northbound service road of Central Expressway when he saw appellant's car traveling faster than the other cars on the freeway. Officer Muse "paced" appellant's car-i.e., drove parallel to appellant until he "matched the speed, speed for speed." Officer Muse determined that appellant was driving "70 miles per hour in a 60-mile-per-hour zone" and pulled him over for speeding. Officer Muse noticed a strong odor of alcohol and that appellant's eyes were bloodshot and watery. Appellant failed several field sobriety tests and was arrested. Appellant's Evidence Appellant's father testified that he routinely drives on Central Expressway and that he does not believe that traveling 70 miles an hour on Central Expressway is an unsafe speed:Q. Do you think 70 in a 60-mile-an-hour zone on Central Expressway between, say, Parker Road and Legacy, do you think that's a necessarily unsafe speed?
A. An unsafe speed. I would say not.
Q. And why would you say that?
A. I've routinely drove on Central Expressway, George Bush mainly. If you're-if you're going 70 miles an hour, you are probably getting passed. I wouldn't say it was unsafe speed. It would just be keeping up with traffic.
Q. Okay. Have you seen other vehicles travel at higher speeds than that?
A. Yes, I have.
Q. Okay. Is that stretch of Central Expressway, is it fairly flat and fairly straight?
A. Yes, it is.Appellant's Request for an Article 38.23 Instruction During the charge conference, appellant's counsel asked the trial court to include in the jury charge a probable cause instruction under article 38.23 of the code of criminal procedure. The trial court denied the request. Appellant raised the issue again in his motion for new trial, and the trial court again concluded that the instruction was not warranted and denied the motion for new trial.
Issue on Appeal
In his sole issue on appeal, appellant contends that the trial court erred when it overruled his request for a probable cause instruction under article 38.23. Specially, appellant argues that he was entitled to a probable cause instruction because the testimony raised a fact question regarding the propriety of the traffic stop. In response, the State argues that the trial court properly declined to instruct the jury under article 38.23 because "the jury did not have a factual issue to resolve that could have established an illegal stop."Standard of Review
In reviewing an appellant's claim of charge error, we must first determine whether error exists. Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007). If we find error, we must then determine whether the error caused sufficient harm to require reversal. Id.Applicable Law
Under the transportation code, "[a]n operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing." Tex. Transp. Code Ann. § 545.351(a) (Vernon 1999). Driving at a speed in excess of the speed limit "is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful." Id. § 545.352(a). If an officer has a reasonable suspicion that a person has committed a traffic offense, the officer may legally initiate a traffic stop. See Tex. Dep't of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex. App.-Dallas 2001, no pet.). "Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity." Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). If the evidence raises a fact issue regarding whether an officer who initiated a traffic stop had a reasonable suspicion that the defendant committed a traffic offense, article 38.23 of the Texas Code of Criminal Procedure requires the trial court to instruct the jury regarding the admissibility of any evidence obtained as a result of that stop: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). Because the terms of the statute are mandatory, when an issue of fact is raised, a defendant has a statutory right to have the jury charged accordingly. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). The only question is whether under the facts of a particular case an issue has been raised by the evidence so as to require the jury instruction. Id. Where no issue is raised by the evidence, the trial court acts properly in refusing a request to charge the jury. Id. There are three requirements that a defendant must meet before he is entitled to the submission of a jury instruction under article 38.23(a):
(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) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.Id. In other words, "[t]here must be a genuine dispute about a material fact," and "[t]he disputed fact must be an essential one in deciding the lawfulness of the challenged conduct." Id. at 510-11. Otherwise, "the legality of the conduct is determined by the trial judge alone, as a question of law." Id. at 510.
Analysis
Appellant contends that an article 38.23 instruction was required in this case because there was a disputed fact issue about whether he was "speeding." More specifically, appellant argues that the presumption under section 545.352(a) of the transportation code that driving at a speed in excess of the limit is not reasonable and prudent can be rebutted-and that it was rebutted in this case because:• Officer Muse did not testify that he looked at his speedometer while he was driving parallel to appellant to establish that appellant was traveling at 70 miles per hour;
• Officer Muse did not testify that appellant's speed was unreasonable or imprudent at that time of night;
• although Officer Muse testified that appellant passed other cars on the freeway, Officer Muse did not state whether the other cars were traveling slower than normal, nor did he indicate that appellant passed the other cars in an unreasonable or imprudent manner; and
• appellant's father testified that the freeway on which appellant was driving was straight and flat with significant visibility, and that 70 miles per hour was not an unreasonable or imprudent speed for that portion of the freeway.To support his argument that an instruction under article 38.23 was required in this case, appellant cites Tollett v. State, 219 S.W.3d 593 (Tex. App.-Texarkana 2007, pet. ref'd). Tollett, however, is distinguishable because the defendant in that case was charged with the offense of speeding, and the court addressed only the sufficiency of the charging instrument, not the lawfulness of the stop. In this case, appellant was not charged with the offense of speeding. To justify the traffic stop in this case, the State was required to show only that Officer Muse had a reasonable suspicion that appellant was violating the speeding statute. See Tex. Dept. of Public Safety v. Gilfeather, 293 S.W.3d 875, 879-80 (Tex. App.-Fort Worth 2009, no pet.) (en banc). It is undisputed that Officer Muse saw appellant's vehicle traveling faster than other vehicles on Central Expressway, and that he paced appellant's car and confirmed that appellant was driving 70 miles per hour in a 60-mile-per-hour speed zone. By driving in excess of the speed limit, appellant's conduct constituted prima facie evidence that appellant was violating the speeding statute. See Tex. Transp. Code Ann. § 545.352(a); Gilfeather, 293 S.W.3d at 879-80. And appellant's father only testified that he believed traveling at 70 miles per hour was not an unsafe speed. There was no evidence that raised a fact issue regarding whether appellant was traveling in excess of the speed limit. Cf. Madden, 242 S.W.3d at 511 (noting trial court correctly included article 38.23 instruction in jury charge because evidence created fact issue about whether defendant was traveling in excess of speed limit when he was stopped by police). And because the evidence did not create a fact issue about whether Officer Muse had reasonable suspicion that appellant was violating the speeding statute, we conclude that the trial court properly denied appellant's request for a jury instruction under article 38.23(a). See Icke v. State, 36 S.W.3d 913, 915-16 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd) (trial court did not abuse its discretion in denying motion to suppress because officer's testimony that he knew defendant was driving faster than speed limit, alone or in combination with the fact that officer used his radar to confirm defendant was traveling at a speed of 57 miles per hour, in excess of the 45-miles-per-hour speed limit, "rises to the level of reasonable suspicion" and justified traffic stop); see also Warren v. State, No. 05-08-01431-CR, 2009 WL 3467013, at *4 (Tex. App.-Dallas Oct. 29, 2009, no pet.) (not designated for publication) (concluding officer had reasonable suspicion that defendant was violating speeding statute because radar showed defendant was driving 70 miles per hour, in excess of 65-mile-per-hour speed limit); United States v. Castanon, No. 06-40642, 2007 WL 1560127, at *1 (5th Cir. May 30, 2007) (undisputed fact that defendant "was driving 71 miles per hour and that the speed limit was either 65 or 70 miles per hour" "constituted prima facie evidence of a traffic violation" under sections 545.351(a) and 545.352(a) of the transportation code and "objectively justified the stop").