Opinion
No. 05-19-01377-CR
11-12-2020
JUSTIN LEE EVANS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F19-24028-V
MEMORANDUM OPINION
Before Justices Molberg, Carlyle, and Browning
Opinion by Justice Carlyle
A jury found appellant Justin Lee Evans guilty of possession with intent to deliver a controlled substance, methamphetamine, in an amount of 4 grams or more but less than 200 grams, enhanced by a prior felony offense, and assessed punishment at 35 years' imprisonment and a $10,000.00 fine. On appeal, Mr. Evans contends the trial court erred by denying his requested jury instruction to disregard evidence pursuant to Texas Code of Criminal Procedure article 38.23. We affirm in this memorandum opinion. See TEX. R. APP. P. 47.4.
Background
Garland police officer Jeremy Mohler testified at trial that at about 6:30 p.m. on February 20, 2019, he was parked in an unmarked police car outside a house "known for drug activity and also stolen property." He saw a car drive away from the house and turn onto another street without using a turn signal. He was unable to read the full license plate from a distance because one of the car's "license plate lights" was out. He followed the car to Belt Line Road, where he saw it stop at a red light "past the marked stop line," obstructing the crosswalk. Based on those "three different traffic violations," he initiated a traffic stop of the car. A video recording of the traffic stop from his car's dashboard camera was introduced into evidence and published to the jury.
Officer Mohler testified there were three men inside the stopped car: the driver, a front-seat passenger, and a back-seat passenger. He asked all three men for identification. While doing so, he "smelled the odor of marijuana coming from the vehicle" and saw a gun holster and knife in the back seat and "known gang tattoos on the back passenger," who was Mr. Evans.
All three men were asked to leave the car and were "patted down" for weapons. Inside the car, police found a gun, trace amounts of marijuana and methamphetamine, and drug paraphernalia, including a digital scale and baggies. Police found the drug paraphernalia and gun "right at the feet of where [Mr. Evans] was sitting." They arrested Mr. Evans and took him to the police station, where officers strip-searched him and found three bags of methamphetamine in his underwear.
Mr. Evans testified at trial that on the evening in question, he and two friends, Leon and Tyler, went to another friend's house to "grab a beer." They left that house in Leon's car, with Mr. Evans sitting in the back seat. As they pulled out of the driveway and started down the street, Mr. Evans noticed a "black unmarked vehicle" "kind of hiding out a little bit" on the street and "figured it was a cop." He told Leon to "be careful" and "[d]on't do anything to get pulled over." As they approached Belt Line Road, Mr. Evans noticed the black car was behind them. He testified:
Q. When [Leon] was driving, did you—did he—you notice if he used his left turn signal?
A. As far as I know, we came—when we came to the T intersection, I mean, I'm sitting in the back seat, so I can't 100 percent give you an answer if he did or didn't, but it looked like he made the motion to hit the signal stick, what have you. So I'm going to say yes. As far as my knowledge is yes, he used the left turn signal.
Q. And you heard the officer testify about the stopping and the white line. Do you remember that?
A. Yes, sir.
Q. You recall where the vehicle—your vehicle you were driving in stopped?
A. I wasn't driving, but Leon was driving. I was in the back seat. And from the best of my knowledge, I—again, I was sitting in the back seat. 99 percent sure that he stopped at the stop line. We knew that there was an officer back behind us, so, nine times out of ten, he's not going to just violate the law blatantly in front of the officer.
. . . .
Q. Now, you saw the video also on the bulb on the vehicle, on the license plate. You saw that light?
A. Yes. I seen that it was illuminated. One of them, at least, was illuminated.
Q. Could you make out the tag?
A. Yes, sir.
During the charge conference, defense counsel argued outside the jury's presence that Mr. Evans' testimony "raises a fact issue regarding the legality of the evidence at issue" based on "the three instances where the officer testified that he stopped him for, number 1, fail to signal left turn; number 2, stopping in the crosswalk; and then finally the lighted rear license plate of the vehicle." Defense counsel asked that the jury be instructed pursuant to Texas Code of Criminal Procedure article 38.23 that if it finds or has a reasonable doubt that the stop was unlawful, it "will disregard this testimony of [ ] Officer Mohler relative to the stop of the vehicle in which Defendant was a passenger and the conclusions drawn as a result thereof and . . . will not consider such evidence for any purpose whatsoever." See TEX. CODE CRIM. PROC. art. 38.23(a). The trial court denied the requested jury instruction.
Analysis
Under article 38.23(a), when the evidence raises a question on whether evidence was illegally obtained, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the law, the jury shall disregard any evidence so obtained. See id.; Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). To demonstrate such a question exists, the defendant must show (1) an issue of fact was raised in front of the jury, (2) the fact was contested by affirmative evidence at trial, and (3) the fact is material to the constitutional or statutory violation that the defendant has identified as rendering the particular evidence inadmissible. Madden, 242 S.W.3d at 510.
Evidence to justify an article 38.23(a) instruction can derive "from any source," no matter whether "strong, weak, contradicted, unimpeached, or unbelievable." Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012). But the "affirmative evidence" that puts the existence of the material fact into question cannot be evidence that only calls into question or discredits the evidence supporting the fact. Madden, 242 S.W.3d at 513; Vogel v. State, No. 05-11-01669-CR, 2014 WL 6992555, at *2 (Tex. App.—Dallas Dec. 11, 2014, no pet.) (mem. op., not designated for publication) (citing Madden, 242 S.W.3d at 516). There must be a "conflict in the evidence" regarding the disputed fact. Madden, 242 S.W.3d at 513. Generally, that evidence will come from the testimony of another witness and not the cross-examination of the police officer, though it is possible cross-examination may reveal an evidentiary conflict. See id. at 513 & n.23 (cross-examination questions do not create evidentiary conflicts but answers might), 513 & nn.24-27 (only the answers are evidence). "And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence." Id. at 510 (citing Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003)).
Mr. Evans contends his requested article 38.23 jury instruction was required "because there were disputed fact issues as to whether the driver of the car[] Appellant was riding in[] committed traffic offenses that justified the stop." According to Mr. Evans, (1) he "testified that the driver did not commit the traffic offenses" Officer Mohler described, (2) "the jury heard two completely different stories regarding the driver's actions that night," and (3) "[t]hese contested facts were material to the lawfulness of the traffic stop."
Pursuant to the governing law from the Court of Criminal Appeals and prior opinions of this court interpreting that law, the record here does not support Mr. Evans' assertions. See id. at 513-17; Vogel, 2014 WL 6992555, at *2. We are guided to conclude that his equivocal testimony regarding his observations from inside the car did not "conflict" with Officer Mohler's testimony as to what he observed from the outside. This is due to the simple fact that Mr. Evans—by credibly not claiming certainty about the driver's actions from his position in the back seat—did not provide wholly consistent and certainty-informed testimony that the driver used the turn signal and stopped behind the line and that the rear license-plate lamp actually did allow a "clearly legible" view from fifty feet or more. See Madden, 242 S.W.3d at 513 ("If . . . Officer Lily says that appellant did speed, and Witness Two (or appellant) says that he doesn't remember or doesn't know, there is no disputed fact to submit because there is no affirmative evidence of a factual conflict.").
If the turn signal use and stop behind the line were the only two bases the officer relied on, this would be a closer case. See Middleton, 125 S.W.3d at 453-54 (whether defendant stopped at stop sign was single fact issue regarding probable cause to detain defendant and thus 38.23 instruction was proper). But though Mr. Evans testified he could read the license plate in the dash-cam video of the traffic stop when the cars were parked within feet of one another and the police car's lights were shining on the suspects' car, we must conclude that testimony did not conflict with Officer Mohler's testimony regarding the license plate's earlier lack of visibility from the statutory fifty-foot distance due to incomplete illumination. We have no video evidence to further clarify Officer Mohler's testimony and no evidence from a witness who viewed the license plate from fifty feet behind that contradicts it.
These are not "lagniappe-icing-on-the-cake" details about Officer Mohler's interaction with appellant and the other occupants of the car; they are the material details supporting reasonable suspicion. Cf. Madden, 242 S.W.3d at 517 (appellant's nervousness was ancillary to other facts supporting reasonable suspicion). So, guided by governing law, we conclude there was "no affirmative evidence of a factual conflict" regarding all three alleged traffic violations. See id. at 510, 518 n.38 (citing 40 GEORGE E. DIX & ROBERT O. DAWSON, CRIMINAL PRACTICE & PROCEDURE § 4.914, at 283 (2d ed. 2001), which notes that if a defendant fails to succeed in all challenges that would entitle him to the instruction then "jury submission is not required"). At the least, the defensive evidence regarding the license-plate lamp is not "affirmative evidence" that puts the existence of the material fact into question. See id. at 513. Thus, the trial court did not err by denying the requested jury instruction. See id.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
191377F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F19-24028-V.
Opinion delivered by Justice Carlyle. Justices Molberg and Browning participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 12th day of November, 2020.