AFFIRM; and Opinion Filed December 11, 2014.




                                                      S
                                       Court of Appeals
                                                           In The


                                Fifth District of Texas at Dallas
                                                  No. 05-11-01669-CR

                                        GARRETT VOGEL, Appellant
                                                   V.
                                       THE STATE OF TEXAS, Appellee

                             On Appeal from the County Criminal Court No. 8
                                          Dallas County, Texas
                                   Trial Court Cause No. 07-66820-T

                        MEMORANDUM OPINION ON REMAND
                                  Before Justices Bridges, O’Neill, and Brown 1
                                           Opinion by Justice O'Neill
         Appellant Garrett Vogel appeals his conviction for driving while intoxicated (DWI). In a

single issue, Vogel contends the trial court erred in refusing to instruct the jury regarding

whether reasonable suspicion existed to detain him in accordance with Article 38.23(a) of the

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West

2005). On original submission, we assumed the trial court erred in failing to instruct the jury, but

concluded Vogel suffered no actual harm and affirmed his conviction. See Vogel v. State, No.

05-11-01669-CR, 2013 WL 2467255 (Tex. App.—Dallas Jun. 6, 2013) (not designated for

publication), rev’d, No. PD-0873-13, 2014 WL 5394605 (Tex. Crim. App. Sept. 17, 2014) (not

designated for publication). The Court of Criminal Appeals reversed our judgment, concluding


    1
       The Honorable Justice Ada Brown succeeded the Honorable Mary Murphy, a member of the original panel, upon Justice Murphy's
retirement. Justice Brown has reviewed the briefs and record before the Court.
we had failed to properly apply the Almanza factors in conducting our harm analysis. Vogel v.

State, No. PD-0873-13, 2014 WL 5394605 (Tex. Crim. App. Sept. 17, 2014) (not designated for

publication). In doing so, the Court of Criminal Appeals expressed no opinion on whether the

trial court erred in refusing to give the instruction in the first place. Id. at * 2. We now conclude

the evidence failed to raise a disputed fact issue concerning reasonable suspicion, and therefore

the trial court did not err in refusing Vogel’s request. We again affirm Vogel’s conviction.

       At 1:00 a.m. on December 30, 2007, Dallas Police Officer David Coffie stopped Vogel

because one of his headlights was out. When Vogel rolled down his window, Coffie smelled

alcohol emanating from the car. Officer Coffie also smelled alcohol on Vogel’s breath after

Vogel exited the car. Vogel told Coffie “he might have had a glass of wine or a gin and tonic”

that evening. Coffie continued to detain Vogel, and called for a “DWI unit” to assist the

investigation. Vogel was subsequently arrested for DWI.

       Vogel testified at trial and claimed he had only consumed two alcoholic drinks that night,

one gin and tonic at 7:00 p.m., and a glass of wine at 8:00 p.m. with dinner. Vogel testified he

did not “think” Officer Coffie would have been able to smell alcohol on his breath at the time of

the stop and that he would be “surprised” if Coffie smelled alcohol on him at that time.

       On appeal, Vogel contends the trial court erred in failing to instruct the jury concerning

the legality of his continued detention. 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 TEX. CODE CRIM. PRO. 38.23(a) (West 2005);

Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). To show such a disputed fact

issue exists, the defendant must show (1) an issue of historical 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

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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. 2012). But there must be “affirmative evidence” that puts the

existence of the material fact into question. Madden, 242 S.W.3d at 513. Evidence that only

calls into question or discredits the evidence supporting the fact is not sufficient. Cf. id. at 516

(videotape could only constitute evidence of disputed fact if it “clearly showed” the defendant

did not do something the officer said he did and the video “clearly” would have shown that

conduct if it had occurred). There must be a “conflict in the evidence” regarding the disputed

fact. See id. at 513.

        Vogel first asserts there was an “issue of fact” as to whether the facts on which Coffie

relied on to detain Vogel − the smell alcohol and Vogel’s admission that he may have had a

single drink − sufficed to show reasonable suspicion. However, whether these facts constitute

reasonable suspicion is a question of law, not a question of fact for the jury to determine. Id. at

512-13. Vogel also asserts he was entitled to an Article 38.23(a) instruction because there was a

dispute in the evidence as to whether Officer Coffie smelled alcohol on him. He asserts his

testimony at trial put this fact in dispute.

        Coffie testified he detained Vogel to investigate for DWI because he smelled alcohol

coming from Vogel’s car and then on his breath. Vogel testified he did not “think” Coffie could

have smelled alcohol on his breath and that he would have been “surprised” if he smelled of

alcohol because he only had two drinks, hours before the stop, and had the second drink with

dinner. We conclude Vogel’s testimony is not “affirmative evidence” he did not smell of

alcohol. Because there was no affirmative evidence in the record that Vogel did not smell of

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alcohol, there was no conflict in the evidence or disputed fact issue for the jury to determine. See

Madden, 242 S.W.3d at 513 (there must be affirmative evidence of “did not speed” in the record

before there is a disputed fact issue). Therefore, the trial court did not err in refusing to give an

Article 38.23(a) instruction.

       We resolve the sole issue against Vogel and affirm his conviction.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O'NEILL
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47

111669F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

GARRETT VOGEL, Appellant                            On Appeal from the County Criminal Court
                                                    No. 8, Dallas County, Texas
No. 05-11-01669-CR        V.                        Trial Court Cause No. 07-66820-T.
                                                    Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                        Justices O’Neill and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 11th day of December, 2014.




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