Opinion
No. 05-10-01205-CR No. 05-10-01206-CR
01-25-2012
NORRIS LINWOOD KING, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued January 25, 2012
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F09-59960-I and F09-59961-I
MEMORANDUM OPINION
Before Justices Lang, Murphy, and Myers
Opinion by Justice Murphy
Norris Linwood King appeals his state-jail felony convictions for possessing less than one gram of cocaine and for possessing less than one gram of heroin, for which he received enhanced ten- year concurrent sentences. See Tex. Health & Safety Code Ann. § 481.115(a),(b) (West 2010); Tex. Penal Code Ann. §§ 12.34, 12.35(c)(2) (West 2011). Appellant claims in a single point of error that the trial court erroneously refused to include the legal elements of the offense of "use of a sidewalk" in the application section of the court's jury instruction on illegally obtained evidence under article 38.23(a) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005) (requiring trial court to instruct jury not to consider illegally obtained evidence in "any case where the legal evidence raises an issue hereunder"). We affirm.
BACKGROUND
Dallas Police Officers Daniel Collins and Steven Vineyard were patrolling a high-crime residential neighborhood in their marked patrol car as part of a task force to stop and investigate suspicious people when they saw appellant. Collins testified appellant was walking down the middle of the road in an area with no sidewalks and that he drove up next to appellant and asked him his name and why he was walking down the middle of the road. When appellant provided his name and some identification, the officers determined in a matter of seconds from their on-vehicle computer that appellant had an outstanding arrest warrant for theft. It took the officers about another minute to confirm the existence of this warrant, and they then arrested appellant. They found cocaine and heroin during their search of appellant.
Although Collins testified that he was sure it was illegal for appellant to walk down the middle of the road, he was not clear which legal provision appellant violated. The parties eventually agreed that the relevant statute is section 552.006 of the Texas Transportation Code. Subsection (a) provides that a pedestrian may not walk on a roadway if a sidewalk is accessible; under subsection (b), a pedestrian may walk on the left side of the roadway or on the shoulder of the roadway facing oncoming traffic if a sidewalk is not accessible. See Tex. Transp. Code Ann. § 552.006(a), (b) (West 2011). The State claimed that appellant's violation of this statute by walking down the middle of the road provided the police with reasonable suspicion initially to detain appellant for investigative purposes. See Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982) (traffic violation committed in officer's presence authorizes initial stop).
Appellant testified at trial and admitted possessing the cocaine and the heroin. He testified, however, that he never walked down the middle of the road. Citing lack of sidewalks, he said he walked on the left side of the road at all times except when he legally crossed the road at an intersection. Appellant claimed he never violated section 552.006 and that the initial police stop or detention of him was illegal. As a result, he argued, the jury could not consider the evidence discovered by the search.
During the charge conference, appellant objected that the charge "did not have the 38.23 instruction that would allow the jury to determine the validity of the stop." The trial court amended its charge to include the following article 38.23(a) instruction. You are instructed that under our law no evidence obtained or derived by an officer or other person as a result of an unlawful arrest or search shall be admissible in evidence against an accused.
You are further instructed that once an officer concludes the investigation of the conduct that initiated the traffic stop, continued detention of a person is permitted only if there is reasonable suspicion to believe another offense has been or is being committed.
Therefore, if you find beyond a reasonable doubt that Officer Collins continued the detention of the Defendant based upon a reasonable suspicion that another offense had been or was being committed, then you will find the continued detention of the Defendant to be lawful and you may consider the evidence obtained as a result of the stop of the Defendant.
If you do not so find, or if you have a reasonable doubt thereof, you will disregard the evidence obtained as a result of the continued detention of the Defendant and not consider such evidence for any purpose whatsoever.
Appellant made no claim at trial and does not claim on appeal that the last three paragraphs of this instruction do not focus on the initial detention by police.
After stating that this charge was "better than it was," appellant objected that the charge did not have "the actual elements of 552.006, use of a sidewalk, actually put into the charge itself so that the jury can make a determination if the officer met each and every element before they conducted the initial detention." The trial court overruled this objection while also noting that a copy of section 552.006, which had been admitted into evidence as State's Exhibit 5, would be submitted to the jury along with the other evidence in the case. In appellant's closing jury arguments, he asked the jury to look at section 552.006 and resolve in appellant's favor the factual dispute of whether appellant was in the middle of the road and in violation of section 552.006 when the police initially detained him. Appellant told the jury that the State had to establish "each and every element of this statute beyond a reasonable doubt" and argued that a finding in his favor on whether he violated Section 552.006 would require the jury to disregard the cocaine and the heroin evidence. Specifically, appellant argued:
But I submit that when the police department-when the officers of the City of Dallas stopped Mr. King, they did not have reasonable suspicion. Furthermore, it is not a question of whether they had reasonable suspicion. The question is: Did the State of Texas bring you evidence that satisfied each and every one of you beyond a reasonable doubt that they had a right to stop Mr. King?The State did not dispute these statements or that the legality of appellant's initial detention by the police turned on whether appellant violated section 552.006. The State argued:
Now we go to the statute. First of all, it is very clear that you heard two stories, exactly what happened.
%. . . .
All they could remember was the one little fact that he was in the middle of the road. They couldn't even tell you for how long. You have the right to have all of the evidence when you go back to that room to examine all of the evidence.
I want you to take a look a Texas Statute 552.006. Did they meet each and every element of this statute beyond a reasonable doubt? Because if they didn't, if-and I realize that the burden on you is very difficult. But if they did not prove to you-remember each test is your own. I told you about the pillow test, to where you feel comfortable, then there's only one appropriate verdict that you can reach by law-by operation of law, and that is not guilty, because you cannot take into consideration any of the evidence that they would have garnished from that stop.
. . . .
Folks, he told you he was on the side of that road. This statute let's [sic] you know he has a right to be there. Down there, you've seen it. You heard it. You heard what they said. Those officers were out there that day. They were looking to make contact. They wanted to stop citizens, and they stopped citizens.
Now, it doesn't feel comfortable for somebody who had contraband on them gets away with it. But the fact of the matter is, if they didn't follow the law, each and every element contained within this, then they didn't do their job properly.
You've got two police officers who are just out there doing their job. They told you exactly what happened. They hadn't seen him before, and they encounter this man breaking the law. Reasonable suspicion, exactly as it sounds, that this law was being violated, walking in the middle of the road.
ANALYSIS
Appellant claims on appeal that the trial court erred by not including the legal elements of section 552.006 in its article 38.23(a) instruction. Appellant argues that the article 38.23(a) instruction submitted to the jury was "completely useless" because its vague reference in the first paragraph to an "unlawful arrest or search" negated his entire defense that his initial detention by the police was illegal and left the jury unable to ascertain from the charge "why [this] detention was illegal."
We will assume, without deciding, that the trial court erroneously rejected appellant's request to include the elements of section 552.006 in the article 38.23(a) instruction. We therefore consider whether appellant suffered "some harm" from the exclusion. See Oursbourn, 259 S.W.3d at 181 (article 38.23(a) instruction is "the law applicable" to case when foundational requirements for article 38.23(a) instruction met); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Id. We conclude that any error in the trial court's failure to include the elements of section 552.006 in its article 38.23(a) instruction did not harm appellant. It is relevant to the Almanza harm analysis that a copy of section 552.006 was admitted as an exhibit and the jury therefore had the statute available as part of the record. Appellant referenced the exhibit during his closing jury arguments as a guide to understanding his defensive theory. Appellant's closing jury arguments also demonstrated his defensive theory to the jury that the legality of his initial detention by the police turned on the jury's resolution of the factual dispute of whether appellant was violating section 552.006 by walking down the middle of the road when the police initially detained him. These portions of the record, undisputed by the State during trial and in closing arguments, demonstrate that the jury knew it was the State's burden to prove beyond a reasonable doubt that appellant violated section 552.006 by walking down the middle of the road and that it was not to consider the cocaine and heroin evidence if the State did not carry that burden. Considering the jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and the lack of any dispute regarding the State's burden as to section 552.06, the record fairly shows that any error in the trial court's article 38.23(a) instruction did not prevent the jury from fully understanding and considering appellant's defensive theory and from disregarding the cocaine and heroin evidence in the event that it resolved the section 552.006 factual dispute in appellant's favor. We therefore overrule appellant's sole point off error and affirm the trial court's judgment.
We note, however, that appellant's request for inclusion of the legal elements of section 552.006 in the article 38.23(a) instruction was not a request for submission of a specific contested factual issue material to the lawfulness of appellant's initial detention by the police. See Madden v. State, 242 S.W.3d 504, 510-11 (Tex. Crim. App. 2007) (defendant's right to submission of article 38.23(a) jury instructions is limited to disputed issues of fact material to lawfulness of challenged conduct; first requirement for obtaining article 38.23(a) instruction is that defendant request instruction on specific historical fact or facts because jury decides facts and trial court decides application of the law to those facts). Inclusion of the legal elements of section 552.006 in the article 38.23(a) instruction would not have been like the examples of a proper article 38.23(a) instruction set out in the Texas Court of Criminal Appeals' decision in Oursbourn v. State. See Oursbourn v. State, 259 S.W.3d 159, 173-74 (Tex. Crim. App. 2008) (example of proper article 38.23(a) instruction is, "Do you believe that Officer Obie held a gun to the defendant's head to extract his statement? If so, do not consider the defendant's confession."); id. at 177 n.69 (another example of a fact-specific article 38.23(a) instruction).
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
1001205F.U05