          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS

                                                 NO. PD-1791-11


                                ANGELA DODD HAMAL, Appellant

                                                       v.

                                          THE STATE OF TEXAS


                             ON DISCRETIONARY REVIEW
                         FROM THE SECOND COURT OF APPEALS
                                   WISE COUNTY


Womack, J., filed a dissenting opinion in which Meyers, J., joined.


Article 38.23(a) of the Code of Criminal Procedure says:

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 so obtained.1


1
    T EX . C O D E C RIM . P ROC . art. 38.23.
                                                                                                                       2

         A defendant must meet three requirements before she is entitled to an Article 38.23

instruction:

         (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) the contested factual issue must be material to the lawfulness of the challenged
         conduct in obtaining the evidence.2

         In the instant case, only the first requirement is in dispute.

         The Court of Appeals held that it had been satisfied by the factual issue at trial of

“whether Trooper Riggs was reasonable in believing … that [the appellant] had heard and

understood what he was asking and had lied about having been arrested.”3 The State argues that

the Court of Appeals was incorrect, because a “dispute over the mental processes of appellant or

Trooper Riggs … is irrelevant because reasonable suspicion is determined by the facts

objectively available to the officer.”

         The majority opinion agrees, holding that whether there was a factual issue on this ground

is irrelevant, because it did not matter what Riggs believed, but instead only what “a reasonable

police officer would believe.”

         But what Riggs believed is a factual issue.

         A dispute over whether Trooper Riggs behaved reasonably in determining that the

appellant was deceitful (the dispute the majority views as irrelevant) is the same factual issue as


         2
           Madden v. State, 242 S.W .3d 504, 510 (Tex. Crim. App. 2007).
         Nothing in Article 38.23 requires a factual issue to be raised; the text requires only that an issue be raised.
For decades, though, this court has interpreted Article 38.23 as applying only to factual issues. See, e.g., McElwee v.
State, 493 S.W .2d 876, 880 (Tex. Cr. App. 1973); Merriweather v. State, 501 S.W .2d 887, 891 (Tex. Cr. App.
1973); Thomas v. State, 723 S.W .2d 696, 707 (Tex. Cr. App. 1986).

         3
             Hamal v. State, 352 S.W .3d 835, 852 (Tex. App.–Fort W orth 2011).
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whether a reasonable officer would have determined that the appellant was deceitful (the dispute

the majority implicitly deems legitimate). Whether an actual individual behaved reasonably is

decided in the same way as whether a hypothetical individual would have behaved reasonably in

the identical circumstances.

       The Court’s attempt to distinguish this case from Madden is unconvincing. In each case

the officer testified to his reason for developing reasonable suspicion, and video evidence

showed the appellant controverting that reason. Whether the reason was speeding or deceit, the

dispute is the same. Indeed, the approved question in Madden mirrored the dispute in question

now: “whether [the officer] reasonably believed that appellant was speeding.”4 If the majority

instead wishes to characterize the dispute in Madden as concerning what the officer “did, said,

saw, or heard,” then the dispute in this case can also be characterized as over what the officer

heard. If the Court was right in Madden, it is wrong today; if it is right today, it should overrule

Madden.

       I would affirm the Court of Appeals.


Filed: September 12, 2012.
Publish.




       4
           242 S.W .3d, at 511.
