                                       NO. 07-10-0474-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL A

                                        AUGUST 23, 2012

                             ______________________________


                              ALEXANDER LYSSY, APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE


                           _________________________________

                   FROM THE COUNTY COURT OF GARZA COUNTY;

                     NO. 10555; HONORABLE LEE NORMAN, JUDGE
                          _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                   MEMORANDUM OPINION


       Appellant, Alexander Lyssy, was convicted by a jury of boating while intoxicated,

a Class B misdemeanor.1 He was sentenced to 180 days confinement and fined $2000.

On appeal, he asserts the trial court erred by (1) failing to give an article 38.23 jury

instruction;2 (2) denying him the opportunity to testify why he refused a breath test; and

1
See Tex. Penal Code Ann. § 49.06 (West 2011).
2
See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005). Throughout the remainder of this opinion, we
will cite to provisions of the Texas Code of Criminal Procedure as “article ___” or “art. ___.”
(3) making an improper statement to the jury that prejudiced him.                       We affirm the

conviction and reverse and remand as to punishment.


                                            BACKGROUND


        Appellant was arrested at Lake Alan Henry, in Garza County, Texas, by Game

Wardens Brent Tucker and Matthew Cruse on suspicion of boating while intoxicated. At

trial, Warden Tucker testified that he stopped Appellant for operating a "jet ski"3 after

sunset.4 Appellant disputed that testimony contending that, at the time of his arrest, he

“could still see the sun."        After his arrest, Appellant was read a statutory warning

concerning his rights and was then asked to give a sample of his breath for the purpose

of testing its blood alcohol content. Appellant denied that request. As a result of that

denial, proceedings were subsequently initiated by the Texas Department of Public

Safety to suspend Appellant's driver's license. In that proceeding, the Administrative

Law Judge ("ALJ") determined that Warden Tucker did not have probable cause to stop

Appellant. Resultantly, Appellant’s driver’s license was not suspended.


        Prior to trial, Appellant's counsel requested an order prohibiting the State from

arguing that his refusal to take a breath test was evidence of intoxication unless the

defense was going to be equally able to argue that his refusal was based upon his


3
 "Jet Ski" is a trademark registered with the United States Patent and Trademark Office. It is the brand
name of a personal watercraft manufactured by Kawasaki Heavy Industries, Ltd.
4
 While the term "sunset" is not defined by statute, the United States Naval Observatory defines it as that
moment when the center of the sun is 50 minutes of arc below the horizon. Because the angular
diameter of the sun is approximately 32 arc minutes, at the moment of sunset the upper limb of the sun is
below the horizon. Due to atmospheric refraction, for an observer at sea level with a level, unobstructed
horizon, under average atmospheric conditions, the upper limb of the sun will then appear to be tangent
to the horizon. See http://www.usno.navy.mil/USNO (last visited August 21, 2012).



                                                    2
desire to litigate before the ALJ the issue of probable cause to stop. Appellant's request

was denied. Resultantly, the State was allowed to argue that Appellant's refusal to take

a breath test was evidence of intoxication and Appellant was denied the opportunity to

opine that his reason was otherwise.


       Prior to the submission of the court's charge on guilt/innocence, Appellant

requested the submission of an article 38.23 instruction on the issue of Warden

Tucker's probable cause to initiate a stop. That request was denied and Appellant was

subsequently convicted.


       During guilt/innocence and the first day of the punishment phase of trial,

Appellant was represented by Everett Seymore and Joel Cook. On day two of the

punishment phase, Appellant was represented solely by Joel Cook.5 In the presence of

the jury, proceedings commenced as follows:

       THE COURT: We will call the court back into session. The first item Mr.
       Seymore is not present, which the court doesn’t appreciate. We have a
       trial going on and his dilatory and objectionable responses of the last day
       or two have delayed this proceeding beyond what I think is reasonable
       and appropriate.

       So from this point on objections will be noted for the record. We will take
       judicial notice of. (sic) We are going to proceed in the interest of justice
       and in the interest of this court. And for the consideration of the jurors so
       they may get to their deliberations.

       MR. COOK: Judge, at this time, I would just like the record reflect, I'm
       lodging an objection at this point.

       Following that exchange, additional punishment witnesses, including Appellant,

were presented. Appellant testified as to his eligibility for community supervision, his

5
 Although the record does not formally reflect why Mr. Seymore was not present, Mr. Cook's closing
argument does contain an apology to the jury for Mr. Seymore's absence due to his being "in Federal
Court."

                                                3
past experiences with alcohol related offenses, his current circumstances, and his

desire for community supervision.        After being duly charged by the Court, the jury

returned the maximum punishment allowed by law. Even though the jury found him to

be eligible for community supervision, the jury did not recommend that his sentence be

suspended. Following sentencing, Appellant timely filed a notice of appeal.


                                      38.23 INSTRUCTION


       By his first issue, Appellant contends the trial court erred in overruling his

objection to the charge of the court and his request for an instruction under article 38.23

because there was a factual dispute as to whether probable cause existed to support

his arrest and, therefore, the legality of the subsequent discovery and seizure of

evidence of intoxication. Specifically, he contends there was a factual dispute as to

whether his operation of the personal watercraft was after sunset.6 We find the trial

court did not err in denying the requested instruction.

APPLICABLE LAW

       Article 38.23 provides, in relevant part as follows:

       (a) No evidence obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of the
       Constitution or laws of the United States of America, shall be admitted in
       evidence against the accused on the trial of any criminal case.

       In any case where the legal evidence raises an issue hereunder, 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 this Article, then
       and in such event, the jury shall disregard any such evidence obtained.


6
 See Tex. Parks & Wild. Code Ann. § 31.106(a)(3) (West Supp. 2012) (providing that no person shall
operate a personal watercraft "during the period between sunset and sunrise . . . .")


                                                4
       A jury instruction under article 38.23(a) is required only when there is a factual

dispute concerning the legality of the seizure of evidence. Garza v. State, 126 S.W.3d

79, 85 (Tex.Crim.App. 2004), citing, Thomas v. State, 723 S.W.2d 696, 708

(Tex.Crim.App. 1986); Pierce v. State, 32 S.W.3d 247, 251 (Tex.Crim.App. 2000)

(finding a factual issue exists when there is evidence that controverts testimony of the

officer that established probable cause leading up to the arrest). A fact issue may be

raised from any source and it does not matter whether the evidence is strong, weak,

contradicted, unimpeached, or unbelievable. Garza, 126 S.W.3d at 85.


       To be entitled to the submission of a jury instruction under article 38.23(a), the

contested fact issue must be material to the lawfulness of the challenged conduct in

obtaining the evidence. See Madden v. State, 242 S.W.3d 504, 517 (Tex.Crim.App.

2007) (holding that "if [the disputed fact] is not a fact that is crucial to a legal finding of

reasonable suspicion, then that disputed fact issue need not be submitted to the jury").

See also Reynosa v. State, 996 S.W.2d 238, 240 (Tex.App.--Houston [1st Dist.] 1999,

no pet.) (no instruction required when defendant disputed only one of several stated

bases for stop); Crunk v. State, 934 S.W.2d 788, 794-95 (Tex.App.--Houston [14th dist.]

1996, pet. ref'd) (article 38.23(a) instruction not required when jury's resolution of

disputed fact issue would not render evidence inadmissible).


ANALYSIS

       While a factual dispute did exist as to whether Appellant was operating the

personal watercraft after sunset, that fact is of no consequence to the ultimate

admissibility of evidence of his intoxication because he does not dispute Warden



                                              5
Tucker's other stated reasons for stopping him. Specifically, Warden Tucker testified

that Appellant was on a personal watercraft and doing donuts and jumping the wake of

another moving boat in a dangerous manner.7 Because those undisputed facts are

sufficient to establish reasonable suspicion to stop, resolution of whether Appellant’s

operation of the personal watercraft was before or after sunset would be immaterial.

Issue one is overruled.


                                             BREATH TEST


        Appellant next asserts the trial court erred by not permitting Appellant to testify

that he refused a breath test because he wanted to have an administrative hearing on

his license suspension.8 Assuming, without deciding, that the trial court erred, we find

that any error was harmless.


APPLICABLE LAW


        Because trial courts are in the best position to decide substantive admissibility

questions, we review a trial court’s decision to admit or exclude evidence for abuse of

discretion; Davis v. State, 329 S.W.3d 798, 807 (Tex.Crim.App. 2010), and will uphold a

trial court’s ruling on admissibility of evidence as long as the trial court’s ruling was at

least within the zone of reasonable disagreement. Weathered v. State, 15 S.W.3d 540,

542 (Tex.Crim.App. 2000). See Hernandez v. State, 205 S.W.3d 555, 558 (Tex.App.--
7
 See Tex. Parks & Wild. Code Ann. § 31.106(a)(8) (West Supp. 2012) (providing that no person shall
operate a personal watercraft "by jumping the wake of another vessel recklessly or unnecessarily close to
that vessel . . . .")
8
 On appeal, Appellant concedes, and we agree, that there is a clear difference between the decision of
the ALJ to not suspend his license and his desire to not give a breath sample because he believed he
was entitled to a hearing concerning Warden Tucker’s probable cause to stop him. The trial court’s
decision to disallow this testimony may, in part, be attributable to the fact that Appellant failed to make
this distinction clear in the record concerning his proffered testimony.

                                                    6
Amarillo 2006, pet. ref’d).   If a trial court errs in admitting evidence, we must next

determine whether the error had a substantial and injurious effect or influence in

determining the jury’s verdict.   King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.

1997) (citing Kotteakos v. State, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed.2d 1557

(1946)).   An error that has no influence or only a slight influence on the verdict is

harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998).


ANALYSIS


       Warden Tucker testified that, after he activated his red and blue lights, Appellant

continued to operate his personal watercraft doing donuts in the water close to the boat

that was accompanying him when he was stopped. Warden Cruse testified that he had

to holler for approximately thirty-five to forty seconds to get Appellant’s attention.

Warden Tucker also testified that, when he first came into contact with Appellant, he

smelled a strong odor of alcohol on Appellant’s breath and his eyes were glassy.

Warden Tucker performed the Horizontal Gaze Nystagmus test twice on Appellant after

stopping him, once on his boat and once ashore at a fire station, and twice Appellant

showed six out of six clues for intoxication. Appellant testified he had five to six or more

beers during the seven hours he was at the lake and drank his last beer at 8:00 or 8:30

p.m.   Appellant’s blood test, taken later in the evening, indicated his blood sample

contained 0.22 grams of alcohol per 100 milliliters of blood or almost three times the

legal limit of .08. Given the weight of the evidence as a whole, we cannot say that an

error, if any, in failing to permit Appellant to testify that he refused the breath test

because he wanted to have an administrative hearing had a substantial and injurious



                                             7
effect or influence in determining the jury’s verdict.        Appellant’s second issue is

overruled.


                          TRIAL COURT’S STATEMENT TO THE JURY


       By his third and final issue, Appellant asserts the trial court’s comments made

during the punishment phase of trial made it impossible for him to receive a fair verdict

from the jury because they were unfairly biased by the trial court’s assertion that his

defense counsel had wasted the time of the trial court and, therefore, presumably the

jury. He asserts the injurious effect or influence of the trial court’s comments was

manifested by the jury’s imposition of the maximum punishment possible and by their

rejection of his application for community supervision, despite his eligibility.

APPLICABLE LAW


       In Texas, a trial judge must refrain from making any remark calculated to convey

to the jury his opinion of the case. Brown v. State, 122 S.W.3d 794, 798 (Tex.Crim.App.

2003). Article 38.05 of the Texas Code of Criminal Procedure provides:


       In ruling on the admissibility of evidence, the judge shall not discuss or
       comment upon the weight of the same or its bearing in the case, but shall
       simply decide whether or not it is admissible; nor shall he, at any stage of
       the proceeding previous to the return of the verdict, make any remark
       calculated to convey to the jury his opinion of the case.


       This is so because jurors are prone to readily seize upon the conduct or

language of the trial judge and interpret the same as shedding some light upon his view

of the merits of the issues involved. Id.; Papalia v. United States, 243 F.2d 437, 442

(5th Cir. 1975) (holding that trial judges “must not only refrain from actions which are


                                              8
prejudicial but as well those which do or might give such impression to a jury of laymen

whose awesome respect for the institution of the judge leads them to accord great and

perhaps, decisive significance to his every word or intimation . . . .”)


       To constitute reversible error in violation of article 38.05, the comment in

question must be such that it is reasonably calculated to benefit the State or prejudice

the rights of the defendant. Becknell v. State, 720 S.W.2d 526, 531 (Tex.Crim.App.

1986). An inappropriate comment is to be considered from the jury’s point of view.

Kincade v. State, 552 S.W.2d 832, 835 (Tex.Crim.App. 1977). To determine whether a

comment is either reasonably calculated to benefit the State or prejudice the defendant,

an appellate court must first determine whether the trial judge’s statement was material

to the case. Burge v. State, 443 S.W.2d 720, 724 (Tex.Crim.App. 1969); Jones v.

State, 2003 Tex. App. LEXIS 10329, at *17 (Tex.App.—Austin Dec. 11, 2003, pet. ref’d).

A statement is material if it: (1) implies approval of the State’s argument, (2) indicates

any disbelief in the defense’s position, or (3) diminishes the credibility of the defense’s

approach to the case. Id.


ANALYSIS


       At the beginning of day two of the punishment phase of this trial, in the presence

of the jury and with defense counsel present and ready to proceed, the trial court noted

that Appellant’s lead counsel was absent “which the court [didn’t] appreciate” and that

“his dilatory and objectionable responses of the last day or two” had delayed the trial

“beyond what [he thought was] reasonable and appropriate.” In response to counsel’s




                                              9
objections to those comments, the trial judge denied his request to address the issue

outside the presence of the jury.


         Because a trial judge has broad discretion in maintaining control and expediting a

trial, irritation directed towards dilatory tactics of a defense attorney normally does not

constitute reversible error. Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001).

Here, however, because counsel was present and ready to proceed, there were no

dilatory tactics being employed at that time. The trial judge’s comments were purely

gratuitous and they were made at a time when the jury was about to hear from

Appellant and decide that issue where the greatest latitude in discretion is allowed --

punishment. There was no indication that lead counsel’s absence had delayed the trial

in any way and it is difficult, if not impossible, to determine how such comments could

have had anything but a negative impact on the jury’s punishment decision. As viewed

from the jury’s perspective, we find the trial judge’s comments were reasonably

calculated to prejudice the jury against Appellant, thereby denying him a fair trial.

Appellant’s third issue is sustained.

                                        CONCLUSION

         Because the basis of the error occurred solely during the punishment phase of

trial, the judgment of conviction is affirmed and the trial court’s judgment is reversed as

to punishment only and the cause is remanded to the trial court for further proceedings

consistent with this opinion. Tex. Code Crim. Proc. Ann. article 44.29(b) (West Supp.

2012).

                                                  Patrick A. Pirtle
                                                      Justice
Do not publish.

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