Opinion
No. 05-10-00640-CR
07-16-2012
DOUGLAS ALLAN PRICE, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed July 16, 2012.
On Appeal from the County Court at Law No. 3
Collin County, Texas
Trial Court Cause No. 003-85190-09
MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Fillmore
A jury convicted Douglas Allan Price of driving while intoxicated (DWI), and the trial court assessed punishment of 180 days in county jail, probated for twelve months, and an $800 fine. In one issue, Price asserts the trial court erred by denying his request for a jury instruction pursuant to article 38.23 of the code of criminal procedure because the evidence raised a fact issue regarding whether the initial stop of Price's car was lawful. We affirm the trial court's judgment. The background of this 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 47.4 because the law to be applied in this case is well settled.
Background
Frisco Police Officer Jerry Profeta was the only witness at trial. Profeta testified that, on June 13, 2009, he responded to a call that four juveniles were planning to engage in criminal mischief. When Profeta arrived at the location identified in the call, he saw four juveniles, who immediately ran away. Profeta learned one of the juveniles was Price's son.
Profeta went to Price's house, but nobody was home. Because the lights and the television were on, Profeta believed somebody would be returning soon. Price's house was the second house from the corner and had a garage with a rear entry from the alley behind the house. Profeta backed his patrol car into an alley across the street that ran parallel to the side of Price's house to allow him to see if anyone returned to the back of the house. The front of Profeta's car was positioned so that he could see down the street. Profeta turned off the car, rolled down the windows, and began working on a report.
Approximately thirty minutes later, Profeta heard a vehicle "revving" its engine very loudly. A few seconds later he saw a car driving very fast. The car almost "bottomed out" at an intersection. In Profeta's opinion, the driver was not complying with the speed limit and was driving recklessly. Because Profeta was concerned the car would hit his patrol car, he started his car and backed further into the alley. As the other car slowed to turn into the alley behind Price's house, Profeta saw there was no license plate on the front of the car. Further, the driver failed to signal his intention to turn into the alley behind Price's house. Profeta activated his emergency lights to stop the car. The car pulled into the driveway at the rear of Price's house, and Price got out of the driver's seat. After speaking with Price, Profeta performed field sobriety tests on Price and arrested Price for DWI.
According to Profeta, the video system in his patrol car shuts down when the car is turned off. After the car is started, the video system takes a few seconds to "reboot." Therefore, the video system in the patrol car did not record Price's car while it was on the street. The system began to record as Price turned into the alley behind his house and continued to record while Profeta transported Price to the police station. On the video, Profeta asks Price why he was driving so fast. Profeta also commented to another police officer that Price was "flying down the street" and that he saw the headlights on Price's vehicle go "up and down" when Price drove through the intersection. Finally, Price can be heard on the recording asking Profeta why he stopped him. Profeta responded it was because of his driving and because his vehicle did not have a front license plate.
Under cross-examination, Profeta stated he testified at the administrative license revocation (ALR) hearing of Price's appeal of the suspension of his driver's license. Profeta confirmed he did not state in his police report that he backed into the alley as the other car was approaching to avoid being hit, did not testify that he backed into the alley at the ALR hearing, and that the video from his patrol car does not show that he backed into the alley. He also confirmed the video does not show Price's car driving fast or "bottoming out" at the intersection and that he could not hear the car "revving" on the video. Profeta stated he did not testify at the ALR hearing that Price's car was missing a front license plate or about Price's failure to signal before he turned into the alley. Profeta testified, however, that he was not asked questions about these issues at the ALR hearing. According to Profeta, the ALR hearing was "two minutes long" and the "main point" was whether Profeta regularly observed vehicles traveling over thirty miles per hour. In Profeta's opinion, there was not as much detail in his testimony at the ALR hearing as there was in his testimony at trial, but there were no substantial differences in the testimony.
After the close of evidence, the trial court asked whether Price contended that "the electronic recordings create a fact issue in so far as entitlement to a 38.23 instruction." Price's counsel responded in the affirmative. When the trial court requested counsel "elaborate on that," Price's counsel responded:
The video evidence does not show that the officer can see down the alleyway, and therefore, my client's vehicle coming.
In addition, Your Honor, there is no - or the testimony at the ALR hearing which the officer testified to was different than the testimony in this hearing in that he didn't back up, there was no mention in the report on [sic] the ALR hearing any - not having a license plate or that he failed to signal and turn.
Because there are differences between the officer's story at three parts; [sic] the report, the ALR hearing, and his testimony here today, we believe that there is an issue that entitles the jury to that instruction to determine whether or not there is reasonable suspicion of probable cause for this stop.
The prosecutor stated that, although Profeta provided more detailed testimony at trial than he did at the ALR hearing, there was no conflict that would entitle Price to the requested instruction. Price's counsel argued:
Even if there were contradictions - even if you take out the ALR hearing, Judge, there is [sic] contradictions between the police officer's report and his videotape. The videotape does not show what the officer testified to. The report does not support what the officer testified to in that no front license plate was the reason for the stop, and no turn signal was the reason for the stop. It's not in the report. I cross- examined him on that. That's a factual difference. Couple that with the fact that you don't see the officer pulling back in the alleyway on the video tape and you cannot see my client coming down the road. I do believe these are all factual issues that do entitle the jury to determine whether or not he did have reason to stop. Add to the fact that the officer was admittedly not looking for my client. I do think that that does create a fact issue for the jury, Your Honor, because there are distinct differences between the report and the testimony exclusive with the ALR hearing.
The trial court denied the requested instruction. The jury found Price guilty of DWI. Article 38.23 Instruction
In one issue, Price argues the trial court erred by denying the requested jury instruction because conflicts in Profeta's testimony raised a fact issue about whether he had reasonable suspicion to initiate a traffic stop. The State asserts there is no factual dispute that Profeta observed Price "approaching at a high rate of speed, 'bottom out' in the intersection, and turn without signaling, and that [Price's] car did not have a front license plate."
Price does not dispute that if Profeta had a reasonable suspicion that Price committed any of these traffic violations, the stop would have been lawful. See Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982) ("It is well settled that a traffic violation committed in an officer's presence authorizes an initial stop."); Vasquez v. State, 324 S.W.3d 912, 920 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd).
Our first duty in analyzing a jury-charge issue is to decide whether error exists. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). If error exists, we must determine whether the error caused sufficient harm to warrant reversal. Ngo, 175 S.W.3d at 743-44. If there was error, and the defendant objected to the error at trial, we must reverse if the error "is calculated to injure the rights of the defendant," which means there is "some harm" from the error. Barrios, 283 S.W.3d at 350 (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985 (op. on reh'g)). If the error was not objected to, the error must be "fundamental" and requires reversal "only if it was so egregious and created such harm that the defendant 'has not had a fair and impartial trial.'" Barrios, 283 S.W.3d at 350 (quoting Almanza, 686 S.W.2d at 171).
Under article 38.23 of the code of criminal procedure, no evidence obtained in violation of the federal or state constitutions or laws may be admitted in evidence against the accused. Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005). In any case where the evidence raises a fact issue as to such a violation, "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 [article 38.23], then and in such event, the jury shall disregard any such evidence so obtained." Id.
The terms of article 38.23(a) are "mandatory, and 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) (quoting Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982)). However, a defendant's right to the submission of a jury instruction under article 38.23 is limited to disputed issues of fact that are material to the claim of a constitutional or statutory violation that would render evidence inadmissible. Id. at 509-10. Further, to raise a disputed fact issue warranting an article 38.23(a) instruction, there must be some affirmative evidence that puts the existence of that fact into question. Id. at 513. "[A] cross-examiner's questions do not create a conflict in the evidence, although the [witness's] answers to those questions might." Id.
In this case, Profeta confirmed that he testified to several facts at trial that he did not testify to at the ALR hearing and did not include in his police report. These facts included that (1) Profeta backed his patrol car into the alley because he was concerned it would be hit by Price's vehicle, (2) Price did not signal his intent to turn into the alley, and (3) Price's vehicle did not have a front license plate. However, despite Price's counsel's cross-examination on these issues, Profeta never stated he was wrong about these facts. Rather, he explained he was not asked to testify about these facts at the ALR hearing. There was no affirmative evidence putting the existence of these facts into dispute, only insinuations by Price's counsel that Profeta was lying about them. This is not enough to entitle Price to an article 38.23 instruction. See id. at 515; Garza v. State, 126 S.W.3d 79, 87 (Tex. Crim. App. 2004) (explaining that neither "mere insinuations by appellant's attorney" that police acted improperly nor defense cross-examination of police officers who consistently denied suggestion of impropriety created fact issue that police acted improperly); Rose v. State, 470 S.W.2d 198, 200 (Tex. Crim. App. 1971) ("No witness was called by the appellant to controvert the testimony of the officers. The cross-examination did not raise a fact issue on the right to arrest. Therefore, the court did not err in refusing the [article 38.23] charge."); Shpikula v. State, 68 S.W.3d 212, 217 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (defendant who cross-examined, but did not impeach, police officer on justification for stop "did not raise type of factual dispute that article 38.23 contemplates"); Trent v. State, 925 S.W.2d 130, 133 (Tex. App.-Waco 1996, no pet.) (rejecting defendant's contention that he was entitled to article 38.23 instruction on issue of probable cause because "he sufficiently attacked the credibility" of citizen who arrested him).
See also Kessler v. State, No. 02-08-00270-CR, 2010 WL 1137047, at *3, 8 (Tex. App.-Fort Worth Mar. 25, 2010, pet. ref'd) (mem. op., not designated for publication) (police officer's testimony at ALR hearing that he had reason to believe defendant violated a traffic law by failing to maintain single lane, followed by testimony at trial that officer also thought defendant was intoxicated, had a medical condition, or was not paying attention, did not create factual dispute that entitled defendant to article 38.23 instruction).
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Because there was no affirmative evidence creating a factual dispute on any material issue relating to whether Profeta had reasonable suspicion to stop Price, the trial court did not err by denying Price's request for an article 38.23 instruction. We resolve Price's sole issue against him and affirm the trial court's judgment.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100640F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DOUGLAS ALLAN PRICE, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00640-CR
Appeal from the County Court at Law No. 3 of Collin County, Texas. (Tr.Ct.No. 003- 85190-09).
Opinion delivered by Justice Fillmore, Justices FitzGerald and Murphy participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 16, 2012.
ROBERT M. FILLMORE
JUSTICE