Affirmed and Memorandum Opinion filed August 23, 2018.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-17-00481-CR

                   MARK ANTHONY GASAWAY, Appellant
                                          V.
                          THE STATE OF TEXAS, Appellee

                     On Appeal from the 56th District Court
                           Galveston County, Texas
                      Trial Court Cause No. 16-CR-1519

                            MEMORANDUM OPINION
      In this appeal from a conviction for possession of a controlled substance, we
consider the following two issues: (1) whether the trial court abused its discretion
when it denied a motion to suppress, and (2) whether the trial court erred in its
submission of the jury charge. As to the first issue, we conclude that the trial court’s
ruling is supported by the record, and as to the second issue, we conclude that there
is no error in the jury charge. Accordingly, we overrule both issues and affirm the
trial court’s judgment.
                                 BACKGROUND

      This case is about drugs, but it originates from an investigation into an
unrelated assault. The complainant in that assault called police to report that she had
been physically beaten by her boyfriend. An officer was dispatched to the
complainant’s apartment, where she was waiting with a small group of people. The
complainant informed the officer that her boyfriend had already left, but she
indicated that he may be walking around nearby. She described her boyfriend as
being African American with a light complexion and tattoos. She also said that when
she last saw her boyfriend, he was in red shorts, he was either shirtless or in a red
and white striped shirt, and he was carrying a black bag.

      The officer left the complainant’s apartment to search for the boyfriend, and
in less than a minute, he found appellant walking around in the immediate vicinity.
Appellant was not the complainant’s boyfriend, but he roughly matched the
description of the boyfriend. Appellant is African American with a light skin tone
and tattoos, and at the time of the encounter, he was wearing red shorts with a white
shirt and red lanyard. He was not carrying a black bag.

      The officer stopped appellant and asked for his name. Appellant answered
truthfully, but the officer continued to detain him. When the officer expressed a
desire to conduct a pat-down search for weapons, appellant ran away on foot. The
officer gave chase and eventually apprehended appellant, who was found to be in
possession of methamphetamine.

                            MOTION TO SUPPRESS

      Appellant moved to suppress the drugs, arguing in two separate points that the
officer lacked reasonable suspicion to stop him. In his first point, appellant argued
that the stop was unreasonable because the complainant affirmatively told the officer


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before he began his search that appellant was not her boyfriend. In his second point,
appellant argued that the stop was unreasonable because the complainant’s
description of her boyfriend was so general that it could encompass any black man
in the area. The implication of this second point was that the officer had a duty to
obtain a more specific description of the suspect before he began his search.

      Both of these points were litigated in a pretrial hearing. As for the first point,
there was conflicting evidence. The complainant testified that when the officer first
arrived on the scene, he pointed to a suspect in the parking lot and asked the
complainant if the suspect was the man who had assaulted her. The complainant said
that she recognized the suspect as appellant and she told the officer “no.” This
exchange occurred shortly before the complainant gave the officer a description of
her boyfriend.

      The officer controverted the complainant’s testimony. He said that when he
pointed to the suspect, he was referring to a different person who was not appellant.
The officer also added that he did not see appellant until after the complainant
provided the description of her boyfriend.

      As for the second point, the officer gave the following explanation for why he
stopped appellant: “Because he matched the brief description she gave me of him.
He was in the immediate area. He had the red shorts. I considered him a lighter tone
black gentleman. He was in the parking lot. He had tattoos. So he met the reasonable
suspicion.”

      The trial court denied appellant’s motion, and now appellant complains of that
ruling in his first issue on appeal.

      We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). Under


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this standard, we give almost total deference to the trial court’s determination of
historical facts that are supported by the record, especially if the trial court’s ruling
is based on an evaluation of credibility and demeanor. See Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same level of deference to a
trial court’s ruling on “application of law to fact questions” or “mixed questions of
law and fact” if resolution of those questions also turns on an evaluation of
credibility and demeanor. Id. For pure questions of law, our review is de novo. See
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007).

      Even though appellant based his motion to suppress on two separate points in
the trial court, he limits his argument on appeal to just the second of those points.
He contends that the officer had a duty to ask the complainant for a more detailed
description of her boyfriend, such as his height, weight, hair color, age, and facial
hair. Appellant continues: “If an officer, through neglect or design fails, in his or her
duty to question a witness of the salient descriptive features of a potential suspect, if
reasonably available to the officer, then the stop of a potential suspect is not
reasonable, and a later mistake . . . of the identity of the individual stopped is also
not reasonable.”

      Appellant cites to no authority for these propositions, and they are contrary to
established law.

      An officer can detain a person without a warrant for investigatory purposes if
the officer has a reasonable suspicion of criminal activity. See State v. Kerwick, 393
S.W.3d 270, 273 (Tex. Crim. App. 2013). Reasonable suspicion exists when the
officer has specific and articulable facts that the person is, has been, or will soon be
engaged in criminal activity. See Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex.
Crim. App. 2017). A determination of reasonable suspicion is made by considering
the totality of the circumstances. See Ford v. State, 158 S.W.3d 488, 492–93 (Tex.

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Crim. App. 2005). This standard turns on objective proof of what the officer actually
knew at the time of the detention—in other words, what the officer saw and what he
was told—not, as appellant suggests, what the officer “could have or should have
known.” See State v. Duran, 396 S.W.3d 563, 572 (Tex. Crim. App. 2013).

      Viewed in the light most favorable to the trial court’s decision, the evidence
supports a finding that the officer had specific and articulable facts that appellant
was the complainant’s boyfriend and that he had just committed an assault. The
officer was told by the complainant that her boyfriend was African American with
light-colored skin and tattoos. There was testimony that appellant matched that
description. The officer was also told by the complainant that her boyfriend was
wearing red shorts and that he was walking around nearby. There was testimony that
appellant matched that description too. Indeed, the officer encountered appellant
almost immediately after he left the complainant’s apartment. Based on all of these
matches, the officer could have reasonably suspected that appellant was the
complainant’s boyfriend, and therefore, the officer had reasonable suspicion to
detain him. See Thomas v. State, 297 S.W.3d 458, 461–62 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref’d) (holding that the detention was reasonable because the
defendant matched the witness’s general description of being a black or Hispanic
male in bright red shoes).

      To be sure, appellant did not completely match the complainant’s description
of her boyfriend: appellant was not shirtless or wearing a striped shirt, he was not
carrying a black bag, and he identified himself by his own true name. However, these
variances are not dispositive. An officer can draw on his own experience and
specialized training when conducting an investigation, which may include
knowledge that a suspect may try to change his appearance or his name in an effort
to evade identification. See id. at 462 (the witness reported the suspect as wearing

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dark clothing, but the defendant was stopped while wearing a white shirt, and the
detention was still upheld as reasonable because the officer could have reasonably
determined that the defendant removed his jacket to avoid detection). An officer can
also conclude that a witness’s description is inaccurate, and here, the officer may
have reasonably determined that the complainant had confused a red and white
striped shirt (which her boyfriend may have been wearing) with a white shirt and a
red lanyard (which is what appellant was actually wearing). Cf. Louis v. State, 825
S.W.2d 752, 755 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (holding that a
stop of a light tan car was reasonable even though the witness reported the suspect
car as being white because “a white car could easily be confused with a light tan
car”).

         Looking at the totality of the circumstances, and what the officer actually
knew at the time of the detention, we conclude that appellant’s detention was
reasonable. The reasonableness of this detention is not vitiated by the officer’s
ultimate mistake about appellant’s identity. See Robinson v. State, 377 S.W.3d 712,
720–21 (Tex. Crim. App. 2012) (“A mistake about the facts, if reasonable, will not
vitiate an officer’s actions in hindsight so long as his actions were lawful under the
facts as he reasonably, albeit mistakenly, perceived them to be.”). Nor is it vitiated
by the officer’s failure before the search to obtain more specific details about the
complainant’s boyfriend, such as his height or weight. See Thomas, 297 S.W.3d at
461 (upholding a detention where the witness generally described the suspect as
being a black or Hispanic male with red shoes, even though the witness did not
provide “any height, weight, or other distinguishing factors”). Because the detention
was reasonable, the trial court did not abuse its discretion by denying the motion to
suppress. We overrule appellant’s first issue.



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                              THE JURY CHARGE

      Appellant’s second issue on appeal relates back to the first point he raised in
his motion to suppress, which was whether the complainant had affirmatively
eliminated him as a suspect before the officer began his search.

      This point was re-litigated during the trial on the merits. The jury heard the
complainant testify that when the officer first arrived on the scene, he pointed to a
man in the parking lot and asked whether that man was the person who had assaulted
her. The complainant testified that the officer was pointing at appellant, and that she
answered the officer with a “no.” Controverting this testimony, the officer testified
that he had been pointing at a person who was standing next to the complainant. The
officer added that he did not even notice appellant until after he met with the
complainant and obtained a description of her boyfriend.

      During the charge conference, appellant cited this conflict in the evidence and
then requested the following instruction under Article 38.23, which is the Texas
exclusionary rule:

      You are further instructed that under the laws of the State of Texas, no
      evidence obtained by an officer 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. Therefore, if you believe,
      or if you have a reasonable doubt that as to whether or not [the
      complainant] told [the officer] that the defendant, Mark Gasaway, was
      not the person who assaulted her prior to [the officer] stopping the
      defendant, then, you, the jury, shall disregard any such evidence
      obtained, namely the controlled substance recovered by [the officer]
      and not consider it for any reason.

      The trial court rejected this instruction and gave the following instruction
instead:


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              You are instructed that 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.
             You are further instructed that our law permits the stop and
      detention of a person by a peace officer without a warrant when the
      officer has reasonable suspicion to believe that the person is involved
      in criminal activity.
             By the term “reasonable suspicion,” as used herein, is meant
      specific articulable facts which, when taken together with rational
      inferences from those facts, would warrant a man of reasonable caution
      to believe that an offense has been or is being committed.
             Therefore, bearing in mind these instructions, if you find from
      the evidence that, on the occasion in question, [the officer] did not have
      reasonable suspicion to believe that the Defendant was involved in an
      Assault Causing Bodily Injury—Family Violence against [the
      complainant] immediately prior to the stop, or if you have a reasonable
      doubt thereof, you will disregard any and all evidence obtained as a
      result of the Defendant’s detention by the officer and you will not
      consider such evidence for any purpose whatsoever.
            However, if you find from the evidence that, on the occasion in
      question, [the officer] did have reasonable suspicion to believe that the
      Defendant was involved in an Assault Causing Bodily Injury—Family
      Violence against [the complainant] immediately prior to the stop, then
      you may consider the evidence obtained by the officer as a result of the
      detention.
      Appellant contends that the trial court erred by denying his requested
instruction, but his legal argument is not fully constructed. The only point that he
makes in his brief is that his requested instruction should have been granted because
he satisfied the requirements for an instruction under Article 38.23.

      We agree with appellant on that basic premise. He did satisfy the requirements
under Article 38.23. See Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App.
2012 (“To be entitled to an Article 38.23 jury instruction, three predicates must be

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met: (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.”).

      We would even say that appellant’s requested instruction was better than the
instruction given by the trial court because his requested instruction more
specifically directed the jury to the historical fact in dispute. See Madden v. State,
242 S.W.3d 504, 508 n.7 (Tex. Crim. App. 2007) (approving an “admirable”
instruction because it “specifically directs the jury’s attention to the one historical
fact . . . in dispute and tells the jury to decide this fact”). Appellant’s instruction
pointedly asked “whether or not [the complainant] told [the officer] that the
defendant, Mark Gasaway, was not the person who assaulted her prior to [the officer]
stopping the defendant,” whereas the trial court’s instruction more broadly asked
whether the officer had “reasonable suspicion to believe that the Defendant was
involved in an Assault Causing Bodily Injury—Family Violence against [the
complainant] immediately prior to the stop.”

      But appellant makes no argument that the trial court’s instruction was
somehow deficient. In fact, his brief contains no mention of the trial court’s
instruction at all. Parts of his brief even give the impression that the trial court
provided no instruction under Article 38.23 whatsoever.

      During closing arguments, defense counsel could have emphasized the
evidence that the complainant told the officer before the detention that appellant was
not the person who had assaulted her. That evidence, if believed, would have
supported a finding that the officer did not have “reasonable suspicion to believe that
the Defendant was involved in an Assault Causing Bodily Injury—Family Violence
against [the complainant] immediately prior to the stop,” which, under the trial



                                          9
court’s instruction, would have required the jury to disregard the evidence obtained
as a result of the detention.

      But defense counsel did not make that argument. He argued instead that the
officer’s detention was unlawful because it was the product of racial profiling. He
made no mention during closing statements that the complainant had affirmatively
eliminated appellant as a suspect before the officer began his search.

      Even though we agree with appellant that his requested instruction was legally
correct, we conclude that appellant has not established any error in the charge as
given. We therefore overrule his second issue.

                                  CONCLUSION

      The trial court’s judgment is affirmed.




                                       /s/      Tracy Christopher
                                                Justice



Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).




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