Opinion issued May 5, 2020




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-19-00578-CR
                           ———————————
                           LISA JAMES, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 14
                           Harris County, Texas
                       Trial Court Case No. 2186131


                         MEMORANDUM OPINION

      A jury convicted appellant, Lisa James, of the offense of driving while

intoxicated.1 The trial court assessed her punishment at confinement for 180 days,



1
      See TEX. PENAL CODE § 49.04.
suspended the sentence, and placed her on community supervision for one year. In

her sole issue, appellant contends that the trial court erred in failing to instruct the

jury in accordance with Texas Code of Criminal Procedure article 38.23, which

authorizes a jury to disregard evidence that it concludes was illegally obtained.2

      We affirm.

                                     Background

      Harris County Constable’s Office, Precinct 4, (“HCCO”) Lieutenant W.

Harrah testified that, at approximately 1:00 a.m. on January 18, 2018, he was on

patrol on Louetta Road in northwest Harris County when saw a car enter Louetta

from a private driveway. When the car first entered the roadway, it traveled “down

the center stripe” in two lanes, “straddl[ing] one of the divider lines.” The car

“stayed that way for a little bit, and then moved into the right lane.” Harrah followed

the car for approximately two miles.

      During that time, Lieutenant Harrah noted that the car did not maintain a

consistent speed and that, at times, it exceeded the speed limit. While traveling in a

40-mile-per-hour zone, the speed of the car fluctuated between 30 and 60 miles per

hour. In addition, at times, the left wheels of the car drifted over the left lane divider


2
      See TEX. CODE CRIM. PROC. art. 38.23(a) (“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”).
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and, at times, the right wheels drifted over the fog line. Harrah testified that, when

the car reached Stuebner Airline Road, “where [he] didn’t want to keep going,” he

activated his lights and initiated a traffic stop. He noted that activating his lights

also activated his dashboard camera, which captured the 30-second interval prior to

activation. The car pulled into a parking lot and stopped. Harrah noted that he

“stopped [the car] there because that [was] the first legitimate, well-lit parking lot

on that stretch of road.” The trial court admitted into evidence the dashcam video

of the traffic stop.

       Lieutenant Harrah further testified that, when he approached the driver, who

was appellant, he smelled a “very[] strong odor of alcoholic beverage.” Based on

his training and experience, considering appellant’s inability to maintain a consistent

speed or single traffic lane, and the odor of alcohol emanating from her person, he

concluded that a DWI investigation was necessary and called for assistance.

       HCCO Deputy J. King testified that, when he arrived on the scene, appellant

was seated in her car. King “immediately detected a strong odor of alcohol” coming

from inside appellant’s car. King also noted that appellant had slurred speech and

red, glassy eyes and that her passengers appeared extremely intoxicated. When King

asked appellant to get out of her car, she was “swaying and a little uneasy on her

feet.” Appellant agreed to perform field sobriety testing.




                                          3
      Deputy King testified that, with respect to the horizontal gaze nystagmus test,

appellant displayed five of the six possible clues of intoxication. He also observed

six of the eight possible clues of intoxication during her performance of the walk-

and-turn test. Namely, appellant could not maintain the “ready position,” and, once

she began the test, she used her arms for balance, swayed, stepped off of the line,

and failed to step or count as directed. During King’s delivery of the instructions

for performing the one-leg-stand test, appellant admitted that there was “no way she

was going to be able to perform the test.” King testified that, based on his training

and experience in investigating DWI cases, he concluded that appellant was

intoxicated and placed her under arrest. The trial court admitted into evidence a

dashcam video of the field sobriety testing that King conducted on appellant.

      At the close of the guilt-innocence phase of trial, appellant affirmatively stated

that she had no objection to the jury charge. During its deliberations, the jury sent a

note to the trial court, asking: “If the jury feels that there wasn’t probable cause for

the defendant to be pulled over, is the rest of the evidence still able to be considered

or inadmissible?” The following colloquy then occurred:

      [Trial Court]:          . . . . The proposed answer that I’m giving is, the
                              jury charge you have been giving is all the law
                              you need in this case.            Continue your
                              deliberations. Does anybody from either side
                              have any objection to my response?
      [The State]:            The State has no objection, sir.
      [Trial Court]:          [Defense counsel], do you have any objection?

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      [Defense Counsel]:      Well, I mean, 38.23 does say that if—
      [Trial Court]:          You won’t hurt my feelings, you can make an
                              objection.
      [Defense Counsel]:      Yeah, 38.23 does say someone—if the jury
                              believes that someone has violated the
                              Constitutional rights of the defendant in
                              obtaining evidence, that they are to ignore the
                              evidence.
      [Trial Court]:          Right, but you didn’t ask for that charge.
      [Defense Counsel]:      Well, because—
      [Trial Court]:          There was no factual dispute to base it on.
      [Defense Counsel]:      Right.
      [Trial Court]:          All right. Your objection is overruled.

      The jury found appellant guilty of the offense of driving while intoxicated.

The trial court placed her on community supervision for one year.

                                  Jury Instruction

      In her sole issue, appellant argues that the trial court erred “by refusing to give

an Article 38.23 jury instruction” on illegally obtained evidence. See TEX. CODE

CRIM. PROC. art. 38.23. She asserts that, based on the jury’s note, it “believed

Lieutenant Harrah stopped [her] without probable cause because his cruiser’s

dashcam video and his testimony presented irreconcilable, disputed facts about [her]

driving and the circumstances of Harrah’s stop.” Thus, “[t]his evidence created a

legal issue that required the court to submit to the jury an Article 38.23 instruction.”

She asserts that she was harmed based on the error because all of the evidence against



                                           5
her resulted from the disputed stop. See Almanza v. State, 686 S.W.2d 157 (Tex.

Crim. App. 1984).

A.    Standard of Review and Governing Legal Principles

      We review alleged charge error by first determining whether error exists in

the charge. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If error

exists, we then analyze the harm resulting from the error to determine whether

reversal is required. Id. In determining harm, we apply “separate standards of

review depending on whether the defendant timely objected to the jury instructions.”

Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. App. 2016) (applying

Almanza, 686 S.W.2d at 171). If the defendant timely objected, then reversal is

required if we determine that the error caused the defendant “some harm.” Id. If the

defendant did not timely object, then reversal is required only if the error was “so

egregious and created such harm that the defendant did not have a fair and impartial

trial.” Id. “Almanza does not apply,” however, “unless the appellate court first finds

‘error’ in the jury charge.” Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App.

1998).

      To conduct a traffic stop in compliance with the Fourth Amendment, an

officer must have “reasonable suspicion.” Hamal v. State, 390 S.W.3d 302, 306

(Tex. Crim. App. 2012); see also U.S. CONST. amend. IV. Reasonable suspicion

exists “when an officer is aware of ‘specific articulable facts that, when combined


                                          6
with rational inferences from those facts, would lead him to reasonably suspect that

a particular person has engaged or is (or soon will be) engaging in criminal activity.’”

Hamal, 390 S.W.3d at 306. The reasonable suspicion standard is wholly objective;

the subjective intent of the officer conducting the investigation is irrelevant. Id. The

standard requires only “some minimal level of objective justification” for the stop.

Id. Whether the facts known to the officer amount to reasonable suspicion is a mixed

question of law and fact subject to de novo review. Id.

      Texas Code of Criminal Procedure article 38.23 provides that evidence

obtained in violation of state or federal law may not be admitted in a criminal case

and that a jury instruction must be submitted if a fact issue is raised about whether

such a violation has occurred. Id. Article 38.23 states:

      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.

TEX. CODE CRIM. PROC. art. 38.23(a).

      Because the statute is mandatory, the trial court has a duty to sua sponte

submit the instruction if three predicates are met: (1) evidence heard by the jury

raises an issue of fact about how the evidence was obtained, (2) the evidence on that

                                           7
fact is affirmatively contested, and (3) the contested factual issue is material to the

lawfulness of the challenged conduct. Contreras v. State, 312 S.W.3d 566, 574 (Tex.

Crim. App. 2010); see Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App.

2012) (“When a disputed, material issue of fact is successfully raised, the terms of

the statute are mandatory, and the jury must be instructed accordingly.”).

       Under the first prong, there must be a genuine dispute about a material fact.

Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). If the issue raised

by the evidence does not involve controverted historical facts, but only the proper

application of the law to undisputed facts, that issue is properly left to the

determination of the trial court. Robinson, 377 S.W.3d at 719.

       Under the second prong, there must be some affirmative evidence in the

record that places the existence of the fact into question. Madden, 242 S.W.3d at

513 & n.22 (citing 40 GEORGE E. DIX & ROBERT O. DAWSON, CRIMINAL PRACTICE

AND   PROCEDURE § 4.194 at 282 (2d ed. 2001) (“The defendant must affirmatively

introduce evidence that, if credited, would justify a reasonable jury in concluding

that there is a reasonable doubt as to a factual matter essential to the admissibility of

the evidence.”)). A fact issue about whether evidence was legally obtained may be

raised “from any source, and the evidence may be strong, weak, contradicted,

unimpeached, or unbelievable.” Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App.

2004) (quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. App.—Houston [1st


                                           8
Dist.] 1996, pet. ref’d)). However, a “cross-examiner’s questions do not create a

conflict in the evidence, although the witnesses’s answers to those questions might.”

Madden, 242 S.W.3d at 513. “Mere insinuations” that an officer was on a fishing

expedition do not suffice to raise a fact issue entitling a defendant to an article 38.23

instruction. See Garza, 126 S.W.3d at 87.

      Under the third requirement, the disputed fact issue must be essential to

deciding the lawfulness of the challenged conduct. Madden, 242 S.W.3d at 511. If

other facts, not in dispute, are sufficient to support the lawfulness of the challenged

conduct, then the disputed fact issue is not material to the ultimate admissibility of

the evidence and is not to be submitted to the jury. Id. at 510.

B.    Analysis

      Appellant asserts that the dashcam video from Lieutenant Harrah’s patrol car

refuted his testimony regarding the reason for the traffic stop and placed in dispute

the facts essential to the legality of the stop. Namely, she asserts, the video

contradicts Harrah’s testimony that he stopped her at the first well-lit parking lot,

that she failed to drive in a single lane, and that she did not use her turn signal. The

State asserts that none of appellant’s assertions constitute contested material facts.

      The record shows that Lieutenant Harrah testified that he saw appellant’s car

enter the roadway and travel “down the center stripe” in two lanes, “straddl[ing] one

of the divider lines.” He testified that appellant “stayed that way for a little bit, and


                                           9
then moved into the right lane.” Harrah followed appellant for approximately two

miles. During that time, the left wheels of appellant’s car drifted over the left lane

divider, and the right wheels drifted over the fog line. In addition, appellant drove

over the speed limit and did not maintain a consistent speed. While traveling in a

40-mile-per-hour zone, her speed fluctuated between 30 and 60 miles per hour.

      It is well-established that an officer may lawfully stop an individual for a

traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000).

Driving a motor vehicle at a speed in excess of a posted speed limit constitutes prima

facie evidence that the driving speed is not reasonable and prudent and is unlawful.

See TEX. TRANSP. CODE § 545.352(a) (governing speed limits); see also id.

§ 545.351(a) (“Maximum Speed Requirement”); Markle v. State, No. 01-13-01028-

CR, 2015 WL 505194, at *2 (Tex. App.—Houston [1st Dist.] Feb. 5, 2015, pet.

ref’d) (mem. op., not designated for publication). Harrah’s observation of appellant’s

speeding was alone sufficient to justify the traffic stop. See Icke v. State, 36 S.W.3d

913, 915–16 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (holding officer’s

observation of defendant’s speeding was alone sufficient to justify traffic stop); see

also Markle, 2015 WL 505194, at *3. Appellant does not challenge this ground.

      Appellant asserts that Harrah’s testimony was internally contradictory with

respect to the timing of the stop. Initially, she notes, Harrah testified that, after

“several minutes” of following her, he stopped her because “didn’t want to keep


                                          10
going.” Yet, “during cross-examination, he insisted that he had waited for the first

well-lit parking lot to stop her.” And, Harrah added, “I’m seeing if she’s impaired.”

Appellant further asserts that the video shows the cars passing other well-lit parking

lots, which counters Harrah’s cross-examination testimony about the timing of the

stop.

        Setting aside that appellant asserted in the trial court that there was no fact

issue on which to base an article 38.23 instruction, we note that whether Harrah

initiated a traffic stop at what was truly the “first” well-lit parking lot is not material

to the legality of the stop. Further, the reasonable suspicion standard is wholly

objective; the subjective intent of the officer conducting the investigation is

irrelevant. See Hamal, 390 S.W.3d at 306. A defendant’s right to the submission of

a jury instruction under article 38.23(a) is limited to disputed issues of fact that are

material to her claim of a constitutional or statutory violation that would render

evidence inadmissible. See Madden, 242 S.W.3d at 509–10; Ramjattansingh v.

State, 587 S.W.3d 141, 152 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (holding

that timing issue was immaterial to legality of obtaining evidence of intoxication).

        Next, appellant complains that Lieutenant Harrah testified that she “drove in

a single lane throughout and did not use her turn signals” and that the video shows

her driving safely and properly using her turn signal to change lanes.




                                            11
      Lieutenant Harrah testified that the “wheels” of appellant’s car “would cross

over the line” and that the car “wasn’t entering—completely entering the other lane,

just crossing the line and coming back.” Thus, Harrah testified that appellant did

not drive in a single lane. And, he consistently testified that appellant’s failure to

maintain a single lane occurred prior to the video captured by the activation of his

dash camera. As such, the video does not raise a fact issue with respect to Harrah’s

testimony about his observations. See Hamal, 390 S.W.3d at 306.

      With respect to appellant’s use of turn signals, the record does show that

Lieutenant Harrah initially testified that he did not observe appellant use her turn

signal because she did not turn or change lanes. Rather, he explained: “We didn’t

turn. It was a complete straight [sic] until we—I activated my lights. Then she

turned her right signal on, crossed over the fog line and just drove down the fog line

to a parking lot and pulled in.” The video captured appellant using her turn signal

twice—once to change lanes to pass another car at the beginning of the video and

again, as Harrah noted, after he activated his lights. Although Harrah later testified

that he was mistaken as to whether appellant had used her turn signal or had changed

lanes, he testified that he did not stop her for failing to signal. Rather, he stopped

her for speeding and for failing to maintain a single lane.

      When, as here, other facts, i.e., speeding alone, are sufficient to support the

lawfulness of the challenged conduct, then the disputed fact issue is not submitted


                                          12
to the jury because it is not material to the ultimate admissibility of the evidence.

See Madden, 242 S.W.3d at 510; Reynosa v. State, 996 S.W.2d 238, 240 (Tex.

App.—Houston [1st Dist.] 1999, no pet.) (holding that, because other facts, i.e.,

speeding and failing to maintain single lane, were sufficient to justify traffic stop,

question of whether defendant stopped at stop sign did not raise issue of material

fact and no article 38.23 instruction was necessary); see, e.g., Perez v. State, No. 01-

94-00749-CR, 1995 WL 389588, at *2 (Tex. App.—Houston [1st Dist.] June 29,

1995, pet. ref’d) (not designated for publication) (holding that, although defendant

disputed some facts surrounding stop, he did not dispute critical facts that authorized

traffic stop, i.e., speeding, and thus defendant not entitled to article 38.23

instruction); Flakes v. State, No. 01-88-00137-CR, 1989 WL 17163, at *2 (Tex.

App.—Houston [1st Dist.] Mar. 1, 1989, pet. ref’d) (not designated for publication)

(holding unchallenged traffic violations supported stop and thus no article 38.23

instruction required).

      Because appellant does not direct us to any evidence in the record raising a

material fact issue as to how the evidence was obtained, we conclude that appellant

was not entitled to the submission of an article 38.23 instruction. See TEX. CODE

CRIM. PROC. art. 38.23. Accordingly, we hold that the trial court did not err in not

instructing the jury to disregard unlawfully obtained evidence.

      We overrule appellant’s sole issue.


                                          13
                                   Conclusion

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Lloyd and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




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