      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00332-CR



                                   Robert Paul Mills, Appellant

                                                  v.

                                   The State of Texas, Appellee


  FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
        NO. 2007-364, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                                           OPINION


                During the late evening hours of July 2, 2007, Officer Alex Sherwood, then of

the Lockhart Police Department,1 initiated a traffic stop on Robert Paul Mills after, Sherwood

testified, he witnessed Mills making a right turn after Mills had failed to signal within one-hundred

feet of the intersection. See Tex. Transp. Code Ann. § 545.104(b) (West 1999) (“An operator

intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet

of movement of the vehicle before the turn.”). The investigatory detention led to a succession of

incriminating discoveries by Officer Sherwood and his colleagues—weapons, outstanding out-of-

state warrants, and a baggie containing .78 ounces of cocaine—and Mills’s arrest. Mills was indicted

and, based on the evidence obtained during the traffic stop, convicted for the offense of possession

of a controlled substance, cocaine, in an amount less than one gram. See Tex. Health & Safety Code


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           By time of trial, Sherwood was employed by a different law-enforcement agency.
Ann. § 481.002(38) (West Supp. 2008), § 481.115(b) (West 2003). Punishment was assessed at

two years’ confinement in state jail, probated for a period of five years, and a $500 fine.

                On appeal, Mills seeks reversal of his conviction and a new trial. He brings

three issues. In his first issue, Mills complains of the district court’s refusal of his request for a

jury instruction under article 38.23(a) of the code of criminal procedure. See Tex. Code Crim. Proc.

Ann. art. 38.23(a) (West 2005); Madden v. State, 242 S.W.3d 504, 509-11 (Tex. Crim. App. 2007).

Relatedly, Mills complains of the district court’s exclusion of expert testimony going to whether it

was physically possible for Officer Sherwood, from his vantage point, to have seen whether or not

Mills had signaled within one-hundred feet of the intersection. In his second issue, Mills challenges

whether the State could have relied on the out-of-state warrants as a basis for arresting Mills. In his

third issue, Mills complains that the district court erred “by demonstrating open and continuous

hostility towards defense counsel both in front of and outside the presence of the jury, reflecting

a bias in favor of the State.” Because we conclude that the evidence raised a material fact issue that

required an article 38.23(a) jury instruction, we will reverse the judgment of conviction and remand

this cause for a new trial.

                Evidence obtained in violation of the federal or state constitutions or laws is not

admissible in evidence against the accused in a criminal case. See Mapp v. Ohio, 367 U.S. 643, 655

(1961); Miles v. State, 241 S.W.3d 28, 33-34 (Tex. Crim. App. 2007); Pierce v. State, 32 S.W.3d

247, 253 (Tex. Crim. App. 2000); Tex. Code Crim. Proc. Ann. art. 38.23(a). Mills was convicted

based on the evidentiary “fruit” of Officer Sherwood’s traffic stop. See Wong Sun v. United States,

371 U.S. 471 (1963); State v. Iduarte, 268 S.W.3d 544, 550-51 (Tex. Crim. App. 2008). For an



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investigative detention like Officer Sherwood’s traffic stop to be justified under the federal and

state constitutions, an officer must have specific, articulable facts that, when combined with rational

inferences from those facts, would lead him to reasonably conclude that a particular person is,

has been, or soon will be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21 (1968); Castro

v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). Whether such “reasonable suspicion” is

present is determined under an objective standard: whether the facts available to the officer “would

warrant a reasonably cautious person to believe that the action taken was appropriate.” Griffin

v. State, 215 S.W.3d 403, 409 (Tex. Crim. App. 2006) (citing Terry, 392 U.S. at 21-22; O’Hara

v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000)). The facts must amount to more than a

mere hunch or suspicion. Terry, 392 U.S. at 22; Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim.

App. 2005).

               Whether reasonable suspicion is present is a question of law for the trial court when

there is no dispute concerning the existence of the underlying historical facts from which that

determination is made. See Madden, 242 S.W.3d at 510-12. However, if there is a genuine dispute

about the existence of one or more of these historical facts and such a fact’s existence is material to

the stop’s legality, article 38.23(a) entitles the defendant to have the fact’s existence determined by

the jury through the submission of an instruction to disregard any evidence “if it believes, or has a

reasonable doubt” as to whether it was obtained in violation of federal or state constitutions and

laws. Tex. Code Crim. Proc. Ann. art. 38.23(a); cf. Madden, 242 S.W.3d at 510-13 (emphasizing

that defendant is not entitled to instruction if either “there is no disputed factual issue” or fact,




                                                  3
though disputed, is immaterial because “other facts, not in dispute, are sufficient to support the

lawfulness of the challenged conduct”).

               At trial, Officer Sherwood testified that, as he was driving north on Colorado Street

(U.S. 183) in Lockhart, he saw Mills driving westward on East Market Street—moving right-to-left,

from Sherwood’s perspective—and approaching that street’s intersection with Colorado/183.2 Mills,

according to Sherwood, stopped at a stop sign at the intersection, then turned right or north onto

Colorado/183. Sherwood acknowledged that Mills did signal before turning, but testified he saw

this occur only “[o]nce [Mills] got to the intersection,” “[w]hen he came to a stop,” and not before

Mills had come within one-hundred feet of the intersection. After Mills turned right or northward

onto Colorado/183, Sherwood pulled him over. Although not dispositive, we note that Sherwood

candidly acknowledged that, once he saw Mills, he “was looking for probable cause for a stop

because [Mills] was coming from a drug—high drug activity area.”

               It is undisputed that, because Sherwood was approaching from the south or Mills’s

left, Mills’s right-turn signal was positioned on the north side of his vehicle—the opposite or “far”

side of the vehicle from Sherwood’s view. There is also no dispute that it was late at night and

that Mills was driving a low-to-the-ground Camaro. The relative positions of the two vehicles

and Mills’s turn indicator are further confirmed by the video recording from Officer Sherwood’s

patrol car camera, which was in evidence and played for the jury.




       2
         Market Street continues westward across Colorado/183 into downtown Lockhart. One
block west of Colorado/183, Market Street runs along the south boundary of the Caldwell County
courthouse lawn.

                                                 4
               The video further reveals that the block immediately south of Market Street and east

of Colorado/183—which from Sherwood’s path, he would have had to look through or over to see

Mills approaching on Market Street—contained various potential obstacles to Sherwood’s line of

sight. The block contains a Walgreens, which is dark. Surrounding the outer perimeter on the block

is a chain-link fence. In the northwest corner of the block, near the Market Street—Colorado/183

intersection, is a large rectangular form that appears to be a portable building or trailer. On the

videotape, this building or trailer blocks one’s view of Market Street behind it until the patrol car

passes to the left of the building and almost immediately turns right onto Market Street. On the

videotape, Mills’s car appears to come into view when Sherwood passes the portable building and

immediately turns right. At that juncture, one can see the blinking illumination from Mills’s right

turn indicator. The video then reflects Sherwood making a u-turn to head west on Market Street,

then a right turn onto Colorado/183, where he pursues Mills and pulls him over.

               Contending that the evidence raised a fact issue as to whether it was physically

possible for Officer Sherwood to have witnessed whether or not Mills had signaled within one-

hundred feet of the intersection, Mills requested an article 38.23(a) jury instruction. Mills also

sought to introduce expert testimony from Joe Martinez, a retired peace officer and licensed

private investigator. Martinez was prepared to testify that he had made calculations based on his

review of the video and measurements he made at the scene and determined that it had been

physically impossible for Officer Sherwood to have seen whether or not Mills signaled within one-

hundred feet of the intersection. The district court excluded Martinez’s testimony, however, based




                                                 5
on Mills’s failure to disclose Martinez as an expert as required by a discovery order. See Tex. Code

Crim. Proc. Ann. art. 39.14(b) (West Supp. 2008).

               On appeal, Mills devotes much of his briefing to debating the legal standards that

govern exclusion of defense experts (as opposed to State experts) for failure to disclose them as

required by a discovery order. See Johnson v. State, 233 S.W.3d 109, 114 (Tex. App.—Houston

[14th Dist.] 2007, no pet.); Strawn v. State, No. 02-02-00170-CR, 2003 Tex. App. LEXIS 4571,

at *7-12 (Tex. App.—Fort Worth May 29, 2003, pet. denied) (mem. op., not designated for

publication) (per curiam). We need not reach that question because we conclude that the above

evidence, even without Martinez’s testimony, presents a fact issue regarding whether it was

physically possible for Officer Sherwood to have ascertained whether Mills had or had not signaled

within one-hundred feet of the intersection and whether, as Sherwood claimed, he had witnessed or

had any reason to suspect that Mills committed the alleged violation.

               The State has suggested that there is no factual dispute warranting an article 38.23(a)

instruction because Officer Sherwood insisted that he was able to see Mills despite any obstacles

and that his patrol-car video did not fully capture the range of his peripheral vision as he approached

the intersection. See Madden, 242 S.W.3d at 513-14 (explaining that “[t]o raise a disputed fact issue

warranting an Article 38.23(a) jury instruction, there must be some affirmative evidence that

puts the existence of that fact into question” and that “a cross-examiner’s questions do not create

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

Officer Sherwood acknowledged the existence of facts that could give rise to the reasonable

inference that he could not possibly have seen whether or not Mills had committed the



                                                  6
traffic violation. On cross, defense counsel elicited the following testimony from Sherwood about

his vehicle’s location relative to the location of Mills’s vehicle and obstacles that could have blocked

Sherwood’s line of sight:


       Q:      And in that [Walgreens] parking lot there was a lot of construction going on,
               correct?

       A:      Correct.

       Q:      All right. And it had a chain-link fence all the way around—

       A:      Correct.

       Q:      —the parking lot, correct?

       A:      Uh-huh.

       Q:      You have to answer yes or no.

       A:      Correct.

       Q:      All right. And then there was the building, the Walgreens building, that was
               in the parking lot, correct?

       A:      Correct.

       Q:      And then there was another metal building or some kind of building that was
               on the corner of the intersection that Mr. Mills was stopped at, is that correct?

       A:      Correct.

       ....

       Q:      All right. And from that corner of the Walgreens parking lot, to the
               intersection where Mr. Mills is, what is the distance?

       A:      I would probably say 200 feet.

       Q:      Would it surprise you if the distance was, in fact, 325 feet?

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A:     No, it won’t.

Q:     All right. And so in order for you to have witnessed Mr. Mills, you would
       have been looking at him at that time diagonal. It wouldn’t have been a
       straight, down the street, but it would have been diagonal to the street that
       runs perpendicular that Mr. Mills was on, correct?

A:     That’s correct.

....

Q:     All right. Now, this is at 10:00 o’clock at night, correct?

A:     I believe so.

Q:     And Mr. Mills is driving a Camaro, correct?

A:     That’s correct.

Q:     And approximately how far from the ground were his blinkers, if you know?

A:     I don’t know.

Q:     Okay. It wouldn’t have been more than a couple of feet, right?

A:     No.

Q:     So they were low to the ground and he was turning to the right. So the
       blinker would have been on the right side of the vehicle, correct?

A:     That’s correct.

Q:     And you were approaching from the left side, correct?

A:     Correct.

....

Q:     Okay. And he had just turned from the road behind the Walgreens, correct?

A:     Correct.



                                         8
        Q:      Okay. And could you see that?

        A:      Him turning?

        Q:      Uh-huh.

        A:      I can’t recollect.


                As noted, it is undisputed that Mills had his right turn signal on when he was

at the intersection, before he turned right. Sherwood’s testimony and the video are affirmative

evidence capable of supporting the inference that Sherwood could not have seen—and did not

see—whether or not Mills had activated his turn signal within one-hundred feet of the intersection.

See id. at 511. This disputed fact issue, in turn, is material to the lawfulness of the traffic stop and,

consequently, whether the evidentiary fruits of that stop were properly admitted. The sole articulable

fact that Officer Sherwood identified as the basis for his stop was the traffic violation he claimed

to have witnessed. If, contrary to Officer Sherwood’s testimony, he physically could not have

seen whether Mills had or had not signaled within the one-hundred feet before the intersection, he

would, without more, have had no more than a hunch or suspicion that Mills committed the

traffic violation—not reasonable suspicion. Terry, 392 U.S. at 22; Brother, 166 S.W.3d at 257. The

State points to no other facts that could give rise to reasonable suspicion for the stop. See Madden,

242 S.W.3d at 511.3


        3
           The State does argue that the issue of an article 38.23(a) instruction was rendered
“moot” by Mills’s admission, after he was stopped, that he had failed to signal within the required
distance of the intersection. Sherwood testified that, when he informed Mills about the reason
for the stop, Mills told him, “You got me. I did not signal.” Also, an admission of the violation by
Mills can be heard on the videotape, although not in those exact words. In the State’s view, there
is no disputed fact issue warranting an article 38.23 instruction because there was no dispute about

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               On this record, the district court erred in refusing Mills’s request for an

article 38.23(a) instruction. See id. at 510 (“The terms of the statute are mandatory, and when an

issue of fact is raised, a defendant has a statutory right to have the jury charged accordingly.”)

(quoting Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982)). We now consider whether

Mills was harmed by that error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on reh’g); Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref’d).

When, as here, error is preserved in the trial court by timely objection, the record must show only

“some harm.” Almanza, 686 S.W.2d at 171; Swearingen, 270 S.W.3d at 808. Here, if the jury

had been properly instructed under article 38.23(a), it would have had the opportunity to find, based

on Sherwood’s testimony and the videotape, that Sherwood could not have seen, and did not see,

Mills commit the traffic violation. As these were the sole facts here that could support reasonable

suspicion for the traffic stop, the jury would then have been instructed to disregard all evidence

obtained from the stop, including the cocaine that formed the basis for Mills’s conviction. Thus,

Mills suffered “some harm” from the charge error. See Reynolds v. State, 848 S.W.2d 148, 149

(Tex. Crim. App. 1993) (explaining how defendant was harmed from trial court’s failure to properly

instruct jury on article 38.23); Vrba v. State, 69 S.W.3d 713, 719 (Tex. App.—Waco 2002, no pet.)




whether Mills committed the traffic offense. However, the disputed fact issue that requires an
article 38.23(a) instruction is not whether it turned out that Mills had actually committed the offense,
but whether or not Officer Sherwood actually witnessed the traffic violation and the antecedent fact
on which a reasonable inference of that fact’s existence depends—that Sherwood could have seen
whether or not Mills had signaled within one-hundred feet of the intersection. Cf. City of Keller
v. Wilson, 168 S.W.3d 802, 812 (Tex. 2004) (“[I]f an eyewitness’s location renders a clear view of
an accident ‘physically impossible,’ it is no evidence of what occurred, even if the eyewitness thinks
otherwise.”) (quoting Tex. & P. Ry. Co. v. Ball, 75 S.W. 4, 6 (Tex. 1903)).

                                                  10
(concluding that defendant suffered some harm when record contained no evidence of defendant’s

guilt “independent of that obtained as a result of the stop”).

                   Accordingly, we sustain Mills’s first issue. This holding entitles Mills to the relief

he seeks on appeal—because his conviction is based on the verdict of a jury that was not properly

instructed under article 38.23, he is entitled to a new trial. See Vrba, 69 S.W.3d at 719, 725; see also

Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986) (reversing conviction and remanding

for new trial when trial court failed to instruct jury on article 38.23). We thus need not reach Mills’s

alternative grounds for a new trial asserted in his other issues. See Tex. R. App. P. 47.1.

                   We reverse the judgment of conviction and remand this cause to the district court

for a new trial.




                                                  __________________________________________

                                                  Bob Pemberton, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Reversed and Remanded

Filed: August 31, 2009

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