Opinion
No. 02-09-00422-CR
Delivered: December 16, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b)
Appealed from County Criminal Court No. 7 of Tarrant County.
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
I. INTRODUCTION
Appellant Robert Brett Dyer appeals his conviction for driving while intoxicated. In a single point, Dyer argues that the trial court erred by not including an article 38.23(a) instruction in the jury charge because a disputed issue of fact existed. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). We will reverse and remand.II. FACTUAL AND PROCEDURAL BACKGROUND
On January 16, 2008, Fort Worth police officers Ryan Timmons and Carolyn Gilmore were patrolling Northeast 28th street in Fort Worth. At 1:24 a.m., the officers began following a gray Ford F-150 truck driven by Dyer and observed the truck swerve to the left and strike the median with the driver's side tires. The officers described the median as a six-to-eight-inch curb separating east-bound and west-bound traffic. The officers initiated a traffic stop, and at that point, they activated an on-dash video camera. After approaching Dyer's vehicle, Officer Timmons noticed a strong odor of alcohol emanating from it and that Dyer had very watery eyes and slurred speech. Officer Timmons asked Dyer to step out of the vehicle and to perform a variety of field sobriety tests, all of which Dyer failed. The officers arrested Dyer for driving while intoxicated. At Dyer's trial, Officers Timmons and Gilmore both testified that they saw Dyer's vehicle hit the curb. The videotape of the stop was played for the jury and shows Dyer pointing to his vehicle several times while talking to the officers; the videotape did not have audio. Both officers were cross-examined about what Dyer was saying as he pointed to his tires; Officer Timmons recalled that he "guess[ed] [Dyer] didn't think he struck the median," and Officer Gilmore testified that she thought Dyer was trying to argue that there was no damage to his tires. Dyer's sole witness was his father, Dewayne Simpson Dyer. He testified about his son's various physical and mental ailments, including his hearing loss, resulting speech problems from his hearing loss, and an old injury to his knee. The jury found Dyer guilty, and the trial court assessed his punishment at 180 days in jail, probated for twenty-four months, and a $750 fine.III. ARTICLE 38.23(a) JURY INSTRUCTION
In his sole point, Dyer argues the trial court erred by not including an article 38.23(a) instruction in the jury charge because a fact issue existed regarding whether his vehicle struck the curb, which was the reason the officers stopped him. Dyer acknowledges that he did not request an article 38.23(a) instruction, but he argues that the trial court's failure to sua sponte include such an instruction caused him to suffer egregious harm.A. Standard of Review
Appellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009). Initially, we must determine whether error occurred. If it did, we must then evaluate whether sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731-32. If there is error in the court's charge but the appellant did not preserve it at trial, we must decide whether the error was so egregious and created such harm that the appellant did not have a fair and impartial trial — in short, that "egregious harm" has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g); see Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Egregious harm is the type and level of harm that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Allen, 253 S.W.3d at 264 n. 15; Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex. Crim. App. 2006); Almanza, 686 S.W.2d at 172. In making an egregious harm determination, "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." Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d at 172-74. The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious harm is a difficult standard to prove and must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch, 922 S.W.2d at 171.B. The Law Concerning an Article 38.23(a) Jury Instruction
Article 38.23(a) provides that no evidence obtained by an officer or other person in violation of the laws or constitutions of Texas or the United States shall be admitted in evidence against the accused on the trial of any criminal case. Tex. Code Crim. Proc. Ann. art. 38.23(a). It also provides that when the legal evidence raises such an issue, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained by such a violation, then it shall disregard any such evidence. Id. A defendant's right to the submission of jury instructions under article 38.23(a) is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007). A defendant must meet three requirements before he is entitled to the submission of a jury instruction under article 38.23(a): (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Id. at 510. In order for there to be a conflict in the evidence that raises a disputed fact issue, there must be some affirmative evidence in the record that puts the existence of that fact in question. Id. at 513. If a defendant successfully raises a factual dispute over whether evidence was illegally obtained, inclusion of a properly worded article 38.23 instruction is mandatory. Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997).C. Disputed Issue of Material Fact
In this case, although Officers Timmons and Gilmore testified unequivocally that they witnessed Dyer swerve and strike the curb on the center median, their testimony, along with the videotape of the stop, demonstrates that Dyer disputed that he hit the curb. Dyer can be seen on the videotape pointing to his truck several times during the conversation with the officers, and after their discussion, Officer Gilmore approached Dyer's car and briefly shined her flashlight on the driver's side tire. Officer Timmons explained Dyer's pointing on the video — "I guess he didn't think he struck the median, but, like I said, both of us were in the car and observed it right in front of us." During Officer Gilmore's cross-examination, the following exchange occurred:Q. All right. And in the video, did you see the — I guess you haven't seen the video, but during the interaction with Mr. Dyer, did he ever point to his tires and try to get you to go over and look at his tires to show you that there was no damage whatsoever to his tires?
A. I think he was trying to make that argument, yes.The question we must answer is whether the videotape and the officers' testimony about the videotape created "some affirmative evidence of `did not [hit the curb]' in the record" to create a disputed fact issue for the jury to resolve. See Madden, 242 S.W.3d at 514. The court of criminal appeals' opinion in Reynolds v. State is instructive. See 848 S.W.2d 148, 148-49 (Tex. Crim. App. 1993). In that case, the officer who stopped Reynolds for speeding testified that Reynolds "told [the officer] he did not think he was going `that fast' and he was going to contest the speeding ticket." Id. at 148. Reynolds's brother, a passenger in the car, testified that he did not think Reynolds had been speeding and that Reynolds himself did not think he had been speeding. The court of criminal appeals held,
While it is true that appellant's own perception of his speed is not dispositive, his perception does fairly raise an issue that he was not speeding in fact. If, in turn, the jurors believed that appellant was not in fact speeding, they would then be forced to conclude that the officer's testimony was either mistaken or incredible. And, although a conclusion that the officer was mistaken would not affect the legitimacy of his stopping appellant, a conclusion that he was lying would. Consequently, appellant's perception of his own speed was relevant . . . because it did "have a[] tendency to make the existence of a[] fact that is of consequence to a determination of the action [i.e., whether the officer was telling the truth] more probable . . . than it would [have] be[en] without the evidence." Tex. R. Crim. Evid. 401.Id. at 149. Thus, the court held that Reynolds was entitled to an article 38.23(a) instruction because there was conflicting evidence from which the jury could have concluded that the officer was lying, which would have affected the legitimacy of the officer's stop. Id. Here, like in Reynolds, evidence was presented — through the officers's testimony and through the videotape of the stop — that Dyer disputed whether he had hit the curb. This evidence conflicted with the officers's testimony that they saw Dyer hit the curb, which was the sole reason that they stopped him. Had the jury believed the contrary evidence and believed that the officers were not credible, the stop would not have been justified. See id. Consequently, the trial court erred by not including an article 38.23(a) instruction in the jury charge. See Tex. Code Crim. Proc. Ann. art. 38.23(a); Reynolds, 848 S.W.2d at 149; see also Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986) (finding error when appellant and her witness testified that appellant was driving in a prudent manner and was not weaving on the roadway, contrary to officer's testimony), overruled on other grounds by Atkinson v. State, 923 S.W.2d 21, 25 (Tex. Crim. App. 1996).