Opinion
No. 05-08-00506-CR
Opinion issued June 22, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Criminal Court Dallas County, Texas, Trial Court Cause No. MA05-48117-B.
Before Justices MORRIS, WRIGHT, and MOSELEY.
MEMORANDUM OPINION
A jury convicted Peter George Poulos, II of driving while intoxicated. On appeal, he complains the trial court erred by refusing to include an instruction in the jury charge on the legality of the stop in his case. We affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. An officer monitoring traffic after midnight one morning observed appellant's truck make a right turn at a red light without stopping for the light. Appellant then "went half way into the inside middle lane and then corrected and then went a fourth of the way into the right-hand lane and the middle lane and then corrected." The officer pursued appellant's truck and made a traffic stop that resulted in appellant's arrest for DWI. At trial, the officer explained that appellant's driving after running the red light could be described as making an overly wide turn or as weaving between lanes as he turned. The officer also stated that he stopped appellant chiefly for running the red light. In his sole issue on appeal, appellant claims the trial court erred in denying his request for a jury instruction on the legality of the stop. He argues the evidence at trial shows the officer's testimony about his truck weaving or making a wide turn was inconsistent and therefore not credible. He contends that, for this reason, the jury should have been instructed that it must disregard any evidence resulting from the stop if it believed the evidence was obtained illegally. In any case where the evidence raises an issue about the legality of how the complained-of evidence was obtained, the jury must be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the constitution or laws of Texas or the Constitution or the laws of the United States, it must disregard any such evidence so obtained. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). To raise a disputed fact issue requiring an article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question. In this context, questions on cross-examination do not create a conflict in the evidence, although the witnesses's answers to those questions could. See Madden v. State, 242 S.W.3d 504, 513 (Tex.Crim.App. 2007). The only witness in appellant's case was the arresting officer. On cross-examination, defense counsel challenged the officer's alternating descriptions of appellant's driving (after he ran the red light) as either weaving or making a wide turn. The officer explained, however, that he employed both terms to describe appellant's movement among the lanes as he made the right turn. Moreover, the officer made clear that he stopped appellant mainly because he had observed him running a red light. There was no conflict in the evidence justifying the stop. Therefore the trial court did not err in denying appellant's requested jury instruction. We affirm the trial court's judgment.