Opinion
No. 05-09-01558-CR
Opinion Filed February 15, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Criminal Court No. 9, Dallas County, Texas, Trial Court Cause No. MB0667942-K.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
A jury convicted appellant Carol Saylor of driving while intoxicated, and the trial court sentenced her to nine days incarceration in the Dallas County jail. In a single issue, she claims the evidence is factually insufficient to support the jury's implied finding officers had reasonable suspicion for the original stop. Because the facts are well-known to the parties, we address only those necessary to disposition of this appeal and issue this memorandum opinion. Tex. Rs. App. P. 47.1., 47.4. We affirm. Officers pulled appellant over after witnessing her driving ten miles under the posted speed limit and weaving within her traffic lane. See Tex. Transp. Code Ann. § 545.060(a) (West 1999) (driver shall drive within a single lane and may not move from lane unless movement can be made safely). She admitted to drinking and showed all six signs of intoxication after field sobriety tests. During trial, the jury heard conflicting testimony about whether appellant crossed the center traffic lane. Based on this evidence, the trial court included an article 38.23(a) instruction. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005). The jury found appellant guilty, and the trial court sentenced her to nine days incarceration in county jail. Appellant argues the evidence is factually insufficient to support the jury's implied finding the officers had reasonable suspicion to make the initial stop because the evidence does not show she ever crossed the center line into the other lane of traffic. The State responds an appellate court may not conduct a factual sufficiency review regarding a question of admissibility of evidence. We agree with the State that a factual sufficiency review would be inappropriate under these facts. The court of criminal appeals has held a "factual sufficiency review is appropriate only as to the sufficiency of the state's proof as to elements of the offense. Such a review is not appropriate as to the admissibility of evidence when such a question is submitted to the jury pursuant to Article 38.23(a)." Hanks v. State, 137 S.W.3d 668, 672 (Tex. Crim. App. 2004); see also Caddell v. State, 123 S.W.3d 722, 726 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd). However, the court of criminal appeals recently overruled Clewis v. State and held the Jackson v. Virginia standard is the only standard a reviewing court is to apply when determining whether the evidence is sufficient to support each element of a criminal offense. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). Thus, we must determine if a legal sufficiency review is likewise inappropriate when a jury impliedly finds no violation occurred in obtaining the evidence pursuant to an article 38.23 instruction. For the following reasons, we conclude a legal sufficiency review is likewise inappropriate under these circumstances. Sufficiency and admissibility of evidence are distinct issues. "Sufficiency" relates to whether the elements of an offense have been logically established by all the evidence presented, both admissible and inadmissible. See Hanks, 137 S.W.3d at 671 (citing Caddell, 123 S.W.3d at 726). "Admissibility" relates to the fairness of introducing evidence and its logical relevance. Id. Accordingly, legal sufficiency issues must relate to the elements of an offense. See id.; see also Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Verhagen v. State, 05-05-00078-CR, 2006 WL 349499, *2 (Tex. App.-Dallas 2006, pet. ref'd) (not designated for publication). Whether or not evidence was illegally obtained is not an element of the offense of driving while intoxicated. See Tex. Penal Code Ann. § 49.04 (West 2003); see Hanks, 137 S.W.3d at 671. Moreover, a jury instruction concerning the legality of appellant's detention should not be used to measure the sufficiency of the evidence. See Verhagen, 2006 WL 349499, at *2 (reviewing the legal and factual sufficiency of the evidence supporting the jury's implied rejection of issues in article 38.23 instruction was inappropriate) (citing Malik, 953 S.W.2d at 240). Thus, because appellant does not challenge the sufficiency of the evidence supporting the elements of driving while intoxicated, we decline to further address appellant's arguments. Her sole issue is overruled.
The trial court instructed the jury as follows:
You are instructed that under our law no evidence obtained or derived by a police officer as a result of an unlawful stop and detention shall be admissible in evidence against an accused. An officer is permitted, however, to make a temporary investigative detention of a motorist if the officers have specific articulable facts which, taken together with rational inferences from those facts, lead them to conclude that a person detained actually is, has been, or soon will engage in criminal activity, including a traffic offense.
Transportation Code section 545.060 states:
(A) an operator of a roadway divided into two or more clearly marked lanes for traffic:
(1) shall drive as nearly as practical entirely within a single lane; and
(2) may not move from the lane unless that movement can be made safely.
Now, bearing in mind these instructions, if you find from the evidence that on the occasion in question, the police officers Blosser or Williams, did not have a reasonable suspicion that the defendant failed to maintain a single lane of traffic or did not have reasonable suspicion that th defendant was driving while intoxicated, or you have a reasonable doubt thereof, then such stopping of the accused would be illegal. And if you find the facts so to be, or you have a reasonable doubt thereof, you will disregard testimony of the officer relative to his stopping the defendant and his conclusions drawn as a result thereof, and you will not consider such evidence for any purpose whatsoever and you should return a verdict of not guilty.
However, if you find beyond a reasonable doubt that the officer did have a reasonable suspicion that the defendant failed to maintain a single lane, or that the defendant was driving while intoxicated, then you will continue your deliberation.