Opinion
NO. 14-18-00323-CR
01-12-2021
JULIA ELIZABETH KUHNS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No 4 Harris County, Texas
Trial Court Cause No. 2119818
MEMORANDUM OPINION
A jury convicted appellant of driving while intoxicated and sentenced her to six months' confinement in county jail to be suspended for two years community supervision and assessed a $500 fine. Appellant raises three issues on appeal: (1) the trial court erred by denying her request for an article 38.23 jury instruction; (2) the Emergency Management Services (EMS) trauma fee is facially unconstitutional because it does not direct the funds to be used for a legitimate criminal justice purpose; and (3) the time payment fee is facially unconstitutional because it does not direct the funds to be used for a legitimate criminal purpose. We modify the trial court's judgment in part, and affirm the judgment as modified.
I. BACKGROUND
Officer Margarito Perales, Jr. of the Houston Police Department testified that at approximately 1:00 am on November 2, 2016, he observed appellant driving on interstate I-59 over a hill, halfway in the exit lane and halfway in the emergency lane. Appellant eventually moved back into the exit lane without using a turn signal. Next, appellant exited the interstate using a turn signal, came to a stop at a lighted intersection, did not turn off her turn signal until after the light turned green, and drove forward without turning. At this point, Officer Perales testified, he had observed sufficient "clues" to develop a reasonable suspicion that appellant was driving while intoxicated and decided to pull appellant over.
Upon encountering appellant in her vehicle, Officer Perales noticed a distinct odor of alcohol emanating from appellant's vehicle. Officer Perales further observed appellant's eyes to be bloodshot and glassy and her speech to be slightly slurred. Officer Perales testified that he asked appellant whether she had been drinking, to which she replied that she had two drinks. Perales administered the standardized field sobriety tests and ultimately concluded, based on the totality of the circumstances, including the operation of appellant's vehicle, that appellant had lost the normal use of her mental and physical faculties due to alcohol intoxication. Officer Perales arrested appellant and took her to jail.
Appellant testified that she was not intoxicated and only had two drinks. Appellant explained that she had driven her vehicle into a pothole earlier that week damaging the vehicle's suspension and causing it to veer right, into the emergency lane. Appellant did not dispute that she was driving in the emergency lane.
At the close of testimony, counsel for appellant requested that the jury charge include an article 38.23 instruction based on Officer Perales's testimony. The trial court denied this request. The jury found appellant guilty and this appeal followed.
II. ISSUES AND ANALYSIS
1. Did the Trial Court Err in Refusing Appellant's Request for an Article 38.23 Jury Instruction?
A. Standard of review
We review a complaint about jury-charge error in two steps. We first determine whether an error occurred. Kirsch v. State, 357 S.W.3d 546, 649 (Tex. Crim. App. 2012). If so, we then analyze the error for harm. Id. There are separate standards for the harm analysis, depending on whether the defendant preserved error by timely raising the complaint. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); see also Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013) (party may preserve error in jury charge by objection or request for instruction); Jenkins v. State, 468 S.W.3d 656, 671 & n.9 (Tex. App.—Houston [14th Dist.] 2015, pet. dism'd). If the defendant timely preserved error, then reversal is required if there was some harm to the defendant. Marshall, 479 S.W.3d at 843. If the defendant failed to preserve error in the trial court, then reversal is required only if the error was so egregious and created such harm that the defendant did not have a fair and impartial trial. Id.
B. Code of Criminal Procedure Article 38.23(a)
Article 38.23 provides that no evidence unlawfully obtained may be admitted against the accused in the trial of a criminal case. See Tex. Code. Crim. Proc. art. 38.23(a). An instruction pursuant to article 38.23 instructs the jury that it must disregard the evidence if the jury believes, or has reasonable doubt, that the evidence was unlawfully obtained. Id.
A defendant's right to an instruction under article 38.23 "is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible." See Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007). The defendant must satisfy three requirements before he may be entitled to the instruction:
(1) the evidence heard by the jury must raise an issue of fact;Id. at 510.
(2) the evidence of 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.
When these elements are not met, a trial court is not required to include an article 38.23(a) instruction. Id. at 510; see Doremus v. State, 530 S.W.3d 277, 286 (Tex. App.—Houston [14th Dist.] 2017, pet.ref'd) (finding appellant failed to affirmatively contest the officer's trial testimony that appellant drove the wrong way down a one-way street, thus appellant was not entitled to a 38.23 instruction as to the legality of the stop); Broussard v. State, 434 S.W.3d 828, 835 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (holding trial court did not err in refusing article 38.23(a) instruction where there was no affirmative evidence before jury that the officers did not smell marijuana).
"To raise a disputed fact issue warranting an article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question." Madden, 242 S.W.3d at 513. In other words, a cross examiner cannot create a factual dispute for purposes of an article 38.23(a) instruction merely by his questions or argument. Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008); Madden, 242 S.W.3d at 514. It is only the answers that are evidence and may create a dispute. Madden, 242 S.W.3d at 514; Cadoree v. State, 331 S.W.3d 514, 521 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). Further, the jury's right to disbelieve a witness's testimony in whole or part does not create a factual dispute as to article 38.23. See Cadoree, 331 S.W.3d at 521.
C. There was no Conflict in the Evidence
Officer Perales testified he stopped appellant's vehicle because:
1. She was straddling the emergency lane and the exit lane while driving over a hill for no apparent reason.
2. When she moved back into the exit lane, she did not use her turn signal.
3. Once she exited the freeway, she was delayed in turning off her turn signal.
None of these facts are disputed. Appellant herself confirms that she was driving in the emergency lane. Although appellant provides an alternative explanation to intoxication for her vehicle veering to the right, Officer Perales's could not have known this at the time. On cross-examination, appellant's counsel attempts to discredit these facts by arguing they are not clear traffic violations, but the facts are still not disputed. These undisputed facts were the "clues" that gave Officer Perales reasonable suspicion to stop appellant's vehicle.
Because there was no disputed fact issue, appellant was not entitled to an article 38.23(a) jury instruction and, thus the trial court did not err by refusing to include the instruction. See Madden, 242, S.W.3d at 510. We overrule appellant's first issue.
2. Constitutional Challenges
A. EMS Trauma Fund Fee
Appellant argues that the $100 EMS trauma fee collected pursuant to article 102.0185 of the Code of Criminal Procedure is facially unconstitutional. See Tex. Code Crim. Proc. art. 102.0185. Appellant's arguments are supported by a recent decision by the Court of Criminal Appeals and the Fort Worth Court of Appeals. See Allen v. State, No. PD-1042-18, —S.W.3d —,—, 2019 WL 6139077, at *6 (Tex. Crim. App. Nov. 20, 2019); Casas v. State, 524, S.W.3d 921, 925-27 (Tex. App.—Fort Worth 2017, no pet.).
Following Allen and Casas, we hold that the statue is facially unconstitutional, which means that the $100 EMS trauma fund fee must be deleted from the bill of costs.
B. Time Payment Fee
Additionally, appellant argues that sections (b) and (d) of section 133.103 of the Local Government Code are facially unconstitutional. See Tex. Loc. Gov't. Code § 133.103. Appellant requests that we reduce the $25 time payment fee assessed against her by 90%. This court has held those sections to be unconstitutional in Johnson v. State. 573 S.W.3d 328, 340 (Tex. App.—Houston [14th Dist.] 2019, pet. filed). Accordingly, we apply our own precedent and reduce the time payment fee assessed against appellant by $22.50 to $2.50.
III. CONCLUSION
We overrule appellant's first issue and hold the trial court did not err in refusing the article 38.23 instruction. We sustain appellant's second and third issues and modify the judgment by deleting the $100 EMS trauma fee and changing the time payment fee from $25 to $2.50. The trial court's judgment is affirmed as modified.
/s/ Ken Wise
Justice Panel consists of Justices Wise, Jewell, and Poissant. Do Not Publish — Tex. R. App. P. 47.2(b)