Opinion issued March 31, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00189-CR
                           ———————————
                         RUBEN TOTTEN, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 228th District Court
                           Harris County, Texas
                       Trial Court Case No. 1365961


                         MEMORANDUM OPINION

      Appellant Ruben Totten appeals his conviction for possession of cocaine. In

a single issue, he complains about the court’s denial of his request for a jury

instruction. We reverse and remand for a new trial.
                                    BACKGROUND

      At trial, Officer Trant with the Houston Police Department’s narcotics unit

testified about his involvement in appellant’s arrest. On October 25, 2012, Trant

was working undercover providing surveillance on a group of duplex units. This

particular location was known for narcotics activity, and Trant had previously

purchased drugs at that location.

      Trant testified that he saw a green Ford Ranger drive past him and park in

the duplex parking lot. Trant saw appellant (a white male) and another person (a

black male) in the vehicle when it drove past him. While the vehicle was parked,

the occupants raised the hood. One of the occupants spent some time inspecting

the engine while the other occupant went inside a duplex for approximately five to

ten minutes. Trant could not tell which occupant went into the duplex.

      When the vehicle left the duplex, it drove west on Brownsville. Trant

testified that he then saw the vehicle turn right onto Frankie Street without using a

turn signal.   Trant did not pull the vehicle over, however, because he was

undercover in an unmarked car.        Instead, he radioed two nearby uniformed

officers, Officers Kunkel and Betancourt, to pull the vehicle over. Kunkel and

Betancourt then pulled over a vehicle that appellant was in.         Trant testified,

however, that the vehicle Kunkel and Betancourt stopped was not actually the

vehicle that he had seen turn without signaling.


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      Officer Kunkel testified about Trant notifying him about a green Ford

Ranger that Trant believed had been involved in a narcotics transaction and that

Trant had witnessed failing to signal a turn. Kunkel testified that he and his

partner, Officer Betancourt, spotted the vehicle a few seconds after receiving a call

from Trant. Kunkel and Betancourt began to follow the vehicle in their marked

patrol car, and Kunkel noticed that the vehicle’s rear taillight was cracked and

emitting a white light. They initiated a traffic stop. Betancourt approached the

driver’s door and Kunkel approached the passenger’s door. Kunkel provided in-

court identification of appellant as the passenger.

      Kunkel asked appellant if he had anything illegal on him. Appellant said

that he had a switchblade knife. Kunkel asked appellant to get out of the car so

that Kunkel could take possession of the switchblade knife in appellant’s pocket.

He then arrested appellant and searched appellant’s person to ensure that he did not

have any other weapons or drugs. That search revealed crack cocaine hidden in

appellant’s shoe. Those drugs were the basis of appellant’s possession charge in

this case.

      After a chemist with the City of Houston Police Department Crime Lab

testified that the substance Kunkel recovered from appellant’s shoe was 1.2 grams

of cocaine, the State and appellant rested. Appellant’s counsel “ask[ed] for a 38.23




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instruction,” which the court denied. The following day, before closing arguments,

appellant’s counsel reurged this request, which was again denied.

      The jury found appellant guilty and, after finding two enhancements for

prior offenses to be true, assessed a sentence of 25 years’ confinement. The court

entered judgment on the jury’s verdict, and appellant timely appealed.

                     TEXAS CODE OF CRIM. PROC. art. 38.23

      In his sole point of error, appellant argues that the “trial court committed

reversible error by refusing to give a requested jury instruction under Article

38.23.” That article provides:

              (a) 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. ANN. art. 38.23(a) (West 2005).

      Noting that the “terms of the statute are mandatory,” the Court of Criminal

Appeals has held that “when an issue of fact is raised, a defendant has a statutory

right to have the jury charged accordingly.” Madden v. State, 242 S.W.3d 504,

510 (Tex. Crim. App. 2007). To demonstrate that he or she is entitled to an


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instruction, the defendant must establish that the evidence raises an issue of fact,

the evidence on that fact is affirmatively contested, and the contested factual issue

must be material to the lawfulness of the challenged conduct in obtaining the

evidence.    Id.   The evidence raising a fact issue “may be strong, weak,

contradicted, unimpeached, or unbelievable.” Mendoza v. State, 88 S.W.3d 236,

239 (Tex. Crim. App. 2002).

A.    Parties’ arguments

      Appellant argues that he was entitled to an article 38.23 instruction

informing the jury that it must disregard the evidence about the drugs found on

appellant if the jury believes, or has a reasonable doubt, about the legality of the

traffic stop that led to his search and arrest. Specifically, he argues that the

evidence raised a fact issue about whether Trant’s allegedly witnessing a green

Ford Ranger commit a traffic violation justified the traffic stop, given that Trant

testified that the vehicle he observed making a turn without signaling was not the

same vehicle Kunkel and Betancourt pulled over. Appellant also claims that

photographic evidence of the scene raises a fact issue about whether Trant could

have seen the vehicle turn without signaling.       Finally, appellant asserts that

Kunkel’s testimony that the vehicle that appellant was riding in had a cracked

taillight does not provide legal cause for the stop because a cracked taillight does




                                         5
not constitute a traffic offense. See Vicknair v. State, 751 S.W.2d 180, 187–89

(Tex. Crim. App. 1986) (op. on reh’g).

      The State does not respond directly to appellant’s argument that the evidence

raised a material fact question as to whether the failure to signal a turn and the later

traffic stop involved the same vehicle. Instead, the State focuses on the issue of the

cracked taillight. Specifically, the State argues that an article 38.23 instruction was

not warranted, as there is “no dispute that Officer Kunkel received a report from

Officer Trant that the Green Ranger carrying Appellant had failed to signal a right

turn at the interaction.”    Thus, “even allowing for a factual dispute over the

cracked taillight,” the State asserts that the “dispute was not material” because

“Officer Kunkel still had reasonable suspicion as a matter of law to conduct the

traffic stop based upon the information he had at the time regardless of whether

Officer Trant observed the cracked taillight or not.”

A.    Analysis

      We agree with appellant that the evidence raised a fact issue warranting an

article 38.23 instruction and that it was thus error for the trial court to refuse

appellant’s request.   Officer Betancourt—who was driving the patrol car that

pulled appellant over—did not testify at appellant’s trial.           Officer Kunkel,

Betancourt’s partner, testified that Trant called them early in the afternoon on

October 25, 2012 to let them know that he was doing undercover narcotics


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surveillance in the area and might need them to “be in the area” and “help with an

investigation.”

      Kunkel testified that Trant contacted them again about 5:00 p.m. that day

with information about a vehicle to pull over:

            Q.     What type of information did you learn from Officer
      Trant?
             A.     He advised us that he was watching a possible narcotics
      location and that he observed what he believed to be a narcotics
      transaction, and he gave us a vehicle description and a suspect
      description of the parties involved and we were close enough to find
      the vehicle that he saw involved in the narcotics transaction.
              Q.   Did he give you any other information?
              A.     On top of the description, he gave us probable cause to
      stop the vehicle. He observed it turn without using its signals, which
      is a traffic violation.
            Q.     Do you remember the vehicle description that you
      received?
              A.   Green Ford Ranger.
             Q.     Did you receive a license plate so that you could locate
      that vehicle?
              A.   I don’t remember. Probably not.
              Q.   Were you able to locate that vehicle?
              A.   Yes.
              Q.   How soon after were you able to locate it?
             A.     A few seconds. He told us what direction of travel it was
      going, on what street. And we were close enough to find it on that
      street as well.
              Q.   Did you immediately pull the vehicle over just based on
      that?
             A.      No. We pulled up behind the vehicle and also observed
      that the tail lens was cracked and emitting a white light.

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             Q.     Is that a traffic violation?
             A.     Yes. That is a traffic violation as well.
             Q.     What did you do at that point?
             A.     We initiated a traffic stop. . . .

      In his testimony, Officer Trant conceded that although he thought that the

green Ford Ranger’s short visit at this particular duplex complex was suspicious

because of prior drug activity in the complex, there was no legal justification for

detaining the vehicle nor its occupants until he witnessed the driver turn without

signaling. And he further testified that he is not sure if the appellant was in the car

that he saw turn without signaling (because the occupants were a “blur”) and that

Kunkel and Betancourt did not pull over the vehicle that he had seen turn without

signaling:

           Q.    Do you remember what information you gave to Officer
      Kunkel and Officer Betancourt?
             A.    Well, they knew when it began [because] I always brief
      people. I let them see me, which they knew me from the past and I
      told them I was going to a location that we’ve been to several times.
      And I was going to basically conduct surveillance and look for
      narcotics activity.
             Q.     Did you give a description of the vehicle you had seen?
             A.     I did.
             Q.     Did you see them actually pull the vehicle over?
             A.     No, ma’am. I stayed where I was at.
             Q.     Did you ever see that vehicle again once they had pulled
      it over?
             A.     No, ma’am. No.


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            Q.     Do you know if the person they pulled over is the same
      person that you saw?
           A.     When they went by – I mean, I could just see two
      occupants. It was kind of a blur –
             Q.    Did you notice if it was the same vehicle that they –
             A.    It wasn’t the same vehicle.
             Q.    And how do you know that?
             A.    Just by what they told me, description-wise.

      The State argues that there was no fact issue for the jury to resolve about the

legality of the stop warranting an article 38.23 instruction. It analogizes this case

to the facts presented in Broussard v. State, 434 S.W.3d 828, 834–35 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref’d). In that case, officers testified that they

approached and detained the occupants of a parked vehicle because the officers

smelled marijuana emanating from the vehicle and saw the defendant smoking a

cigar in the vehicle. Id. at 833. Tests on a cigar recovered from inside the car

revealed that it contained Kush, a legal substance, rather than marijuana. Id. The

defendant argued that he was thus entitled to an article 38.23 instruction because

he raised “a fact issue regarding whether the police officers smelled marijuana.”

Id. The court disagreed, explaining that “[e]ven if the cigar recovered from the car

did not smell like marijuana” that does not amount to affirmative evidence that

“officers did not smell marijuana emanating from the vehicle.”             Id. at 834

(emphasis added). The marijuana smell “may have resulted from the recent use of

marijuana rather than from the appellant’s smoking marijuana when the officers

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saw him smoking inside his vehicle.” Id. at 835. Because there was no affirmative

evidence that the officers did not smell marijuana emanating from the car, the

evidence did not raise a fact issue supporting an article 38.23 instruction. Id.

      The State also cites Tollett v. State, a case in which one officer saw the

defendant driving erratically, but a different officer (who did not witness the erratic

driving) detained the defendant. 422 S.W.3d 886, 897 (Tex. App.—Houston [14th

Dist.] 2014, pet. ref’d). In rejecting defendant’s argument that the evidence raised

a fact issue to support an article 38.23 instruction, the court noted that the absence

of evidence is not the same thing as affirmative evidence. Id. (“We conclude

Officer Sharp’s testimony that he did not observe appellant commit any traffic

violations is not affirmative evidence that Officer Hernandez lied about appellant

committing traffic violations prior to the time Officer Sharp arrived.”).

      In Madden v. State, the Court of Criminal Appeals provided the following

explanation about the type of conflicting affirmative evidence requiring an article

38.23 jury instruction:

             To 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. In this context, a cross-examiner’s
      questions do not create a conflict in the evidence, although the
      witnesses’s answers to those questions might.
            Here, for example, one issue was whether appellant exceeded
      the speed limit of 55 m.p.h. through a construction site, giving Officer
      Lily a reasonable suspicion to stop him. If Officer Lily testifies that
      appellant did speed and Witness Two (or appellant) testifies that he

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      did not speed, this disputed factual issue must be submitted to the
      jury. If the jury finds that appellant did obey the speed limit and that
      Officer Lily was unreasonable in believing that he did not, then they
      may not consider the evidence obtained as a result of this unlawful
      detention. If, however, Officer Lily says that appellant did speed, and
      Witness Two (or appellant) says that he doesn’t remember or doesn’t
      know, there is no disputed fact to submit because there is no
      affirmative evidence of a factual conflict. Similarly, if Officer Lily
      testifies that appellant did speed, but the cross-examiner grills him,
      “Isn’t it true that he really did obey the speed limit, you’re wrong or
      you’re lying?” there is no factual dispute unless Officer Lily admits,
      “Yes, that is true.” The cross-examiner cannot create a factual dispute
      for purposes of an Article 38.23(a) instruction merely by his
      questions. It is only the answers that are evidence and may create a
      dispute. Even the most vigorous cross-examination implying that
      Officer Lily is the Cretan Liar does not raise a disputed issue. There
      must be some affirmative evidence of “did not speed” in the record
      before there is a disputed fact issue. Because there was such evidence
      in this record, the trial judge properly gave a jury instruction on this
      disputed fact.
242 S.W.3d 504, 513–14 (Tex. Crim. App. 2007) (footnotes omitted).

      The evidence here is more like the evidence discussed above in Madden than

in Broussard or Tollett.   In this case, there is affirmative evidence creating a fact

issue about the legal justification for Kunkel and Betancourt’s stop of the vehicle

appellant was riding in. Specifically, while the State argues that Trant’s witnessing

the green Ford Ranger turn without signaling provided the probable cause for the

traffic stop, there is also affirmative evidence that Kunkel and Betancourt pulled

over a different vehicle. It may well be that the jury would resolve this dispute in

the State’s favor, but submission to the jury is mandatory when a fact issue—

compelling or not—is raised by affirmative evidence. Mendoza, 88 S.W.3d at 239

                                         11
(article 38.23 submission is mandatory without regard for whether the evidence is

“strong, weak, contradicted, unimpeached, or unbelievable”).

      The State points out that, “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.” See Mbugua v. State, 312 S.W.3d 657, 669 (Tex. App.—Houston [1st

Dist.] 2009, pet. ref’d). But the State does not actually argue that the green Ford

Ranger’s short visit to the duplex or the cracked tail light provided legal

justification for the stop.1 The factual dispute about whether the vehicle that

committed the traffic violation was the same one that was pulled over goes to the

only legal justification proffered by the State for appellant’s detention leading to

his arrest for possession.

      Because error was preserved in the trial court, appellant must only show

“some harm” from the trial court’s refusing his request for an article 38.23

instruction. Mills v. State, 296 S.W.3d 843, 849 (Tex. App.—Austin 2009, pet.

ref’d) (citing Almanza v. State, 686 S.W.3d 157, 171 (Tex. Crim. App. 1985)).
1
      This is likely because Trant acknowledged that he did not witness any activity at
      the duplex complex justifying a stop. And a cracked taillight emitting a white
      light is only an infraction justifying a stop if it is completely broken out such that
      it does not also emit a red light. Compare Vicknair, 751 S.W.2d at 187–89 (op. on
      reh’g) (cracked taillight emitting sliver of white light did not justify traffic stop),
      with Howard v. State, 888 S.W.2d 166, 172–73 & n.6 (Tex. App.—Waco 1994,
      pet. ref’d) (completely busted out taillight that emitted only a white light, and no
      red light, justified traffic stop because it violated statute requiring automotive
      taillights to emit a red light).
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Because appellant raised a fact issue about the legality of Kenkel and Betancourt’s

stop, and because the narcotics seized in that stop formed the basis of appellant’s

conviction, appellant suffered “some harm” from the charge error. See, e.g., Vrba

v. State, 69 S.W.3d 713, 719 (Tex. App.—Waco 2002, no pet.) (appellant suffered

some harm from the erroneous omission of an article 38.23 instruction because

“record contains no evidence of [appellant’s] guilt independent of that obtained as

a result of the stop”).

       We sustain appellant’s point of error.

                                 CONCLUSION

       We reverse and remand for a new trial.




                                                Sherry Radack
                                                Chief Justice

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

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




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