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                                  MEMORANDUM OPINION

                                         No. 04-08-00832-CR

                                             Steve REYES,
                                                Appellant

                                                   v.

                                            STATE of Texas,
                                               Appellee

                      From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CR-2261
                               Honorable Mary Roman, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: November 4, 2009

AFFIRMED

           A jury convicted appellant Steve Reyes of the offense of possession of cocaine. In a single

issue, Reyes argues the trial court erred by refusing to submit an instruction to the jury on the

lawfulness of the police conduct in this case. See TEX . CODE CRIM . PROC. ANN . art. 38.23(a) (Vernon

2005). Because the evidence raised no fact issue on the lawfulness of the police conduct, we

conclude the trial court did not err in refusing to instruct the jury under article 38.23(a). We affirm.
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                                           BACKGROUND

       At trial, the evidence showed Reyes was observed by an undercover San Antonio police

officer participating in an apparent drug transaction at a carwash. According to the officer’s

testimony, Reyes pulled his car into the carwash, drove alongside the carwash stalls, spotted a car

in one of the stalls, stopped his car, approached the other car’s driver, exchanged an object “hand

to hand” with the other car’s driver, returned to his car, and drove off quickly. After observing the

exchange, the officer, who was in an unmarked car, followed Reyes’s car at a distance and radioed

for assistance from another police officer.

       A uniformed motorcycle officer responded to the undercover officer’s radio request. Both

officers followed Reyes onto a highway. At the time, Reyes was driving at speeds exceeding 80

miles per hour, even though the speed limit was 65 miles per hour. When the motorcycle officer was

a car length behind Reyes, he activated his emergency lights. Immediately after the emergency lights

were activated, Reyes tossed a white object out of the sunroof of his car. Reyes then pulled over to

the side of the road.

       Police retrieved the white object—a sandwich bag containing about six ounces of

cocaine—from the road. Reyes, who was alone in the car, was arrested for possession of cocaine.

       Reyes testified on his own behalf at trial. Reyes’s account of the events leading up to his

arrest was largely consistent with the officers’ testimony. Reyes admitted he had been at the carwash,

had approached the driver’s window of another car, and had left the carwash quickly. Reyes also

admitted he was driving at speeds in excess of 80 miles per hour when he was pulled over by the




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motorcycle officer. However, Reyes denied participating in a drug transaction at the carwash or

tossing the cocaine out of his car.

        At the charge conference, Reyes’s counsel asked for the submission of a jury instruction on

whether the officer acted lawfully in stopping him. The State opposed this instruction, pointing out

that the undisputed evidence showed Reyes was speeding, and therefore, the officer was authorized

to stop him. Reyes’s counsel then asserted Reyes was entitled to the instruction because “the

question is...at the time of the stop was he in possession of the drugs[?]” The trial judge refused the

instruction, noting the undisputed evidence showed Reyes abandoned the cocaine before being seized

by the officer.

        The jury found Reyes guilty of the offense of possession of cocaine.

                            REQUIREMENTS UNDER ARTICLE 38.23(A )

        In his sole issue, Reyes argues the evidence raised a fact issue as to whether the cocaine was

legally obtained by the officers, and therefore, the trial court erred in failing to submit a jury

instruction under article 38.23(a) of the Texas Code of Criminal Procedure. Reyes contends the

cocaine found on the road was relinquished as a result of unauthorized police force, and therefore,

the jury should have been instructed on the admissibility of this evidence. Article 38.23(a) of the

Texas Code of Criminal Procedure provides,

        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


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        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) (Vernon 2005) (emphasis added).

        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 his claim of a constitutional or statutory violation that

would render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App.

2007). A defendant must meet three requirements before he is entitled to a jury instruction under

article 38.23(a): (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 in obtaining the evidence. Id. at 510.

        There must be a genuine dispute about a material fact. Id. If there is no disputed factual issue,

the legality of the conduct is determined by the trial judge alone, as a question of law. Id. And if

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

the disputed fact issue is not submitted to the jury because it is not material to the ultimate

admissibility of the evidence. Id. The disputed fact issue must be an essential one in deciding the

lawfulness of the challenged conduct. Id. at 511.

                                               SEIZURE

        The Fourth Amendment of the United States Constitution and Article I, Section 9 of the

Texas Constitution protect citizens from unreasonable searches and seizures. U.S. CONST . AMEND .

IV; TEX . CONST . art. I, § 9. Under both the federal and state constitutions, a seizure may occur in

either of two ways: (1) when a person is subjected to physical force, however slight, or (2) when a

person submits to a show of authority. Hernandez v. State, 963 S.W.2d 921, 924 (Tex. App.—San

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Antonio 1998, pet. ref’d) (citing California v. Hodari D., 499 U.S. 621, 624-26 (1991), and Johnson

v. State, 912 S.W.2d 227, 234 (Tex. Crim. App. 1995)).

       In Hernandez, a case that is strikingly similar to the present case, we held the defendant was

not seized under the federal and state constitutions when he discarded cocaine from a moving vehicle

after law enforcement agents activated their emergency lights, but before pulling over and submitting

to a show of authority. 963 S.W.2d at 925. As we stated in Hernandez,

               A “show of authority” occurs when actions of the police would cause a
       reasonable person to believe he or she is not free to leave. We agree with Hernandez
       that the activation of the overhead lights constituted a show of authority. However,
       the evidence does not support Hernandez’s assertion that he submitted to the show
       of authority before the cocaine was discarded.
               ....
               Hernandez argues that he submitted to the show of authority because he
       pulled over to the side of the road. We recognize that a seizure may occur when a
       person stops a vehicle in response to a show of authority. Here, however, it is
       undisputed that Hernandez threw the cocaine out of a moving vehicle.

Id. at 924-25 (citations omitted) (emphasis in original). In Hernandez, we concluded that because

no seizure occurred until after the defendant abandoned the cocaine, federal and state constitutional

protections against unreasonable seizures were not implicated. Id. at 925. Additionally, we concluded

it was unnecessary to express any opinion about whether the law enforcement agents had reasonable

suspicion to initiate the stop of the defendant’s vehicle. Id. at 925-26.

                                            DISCUSSION

       In the present case, the evidence failed to raise a material fact issue as to whether the cocaine

was obtained in violation of any state or federal constitutional provisions or laws.

       In his testimony at trial, Reyes denied tossing the cocaine out of his car. On appeal, however,

Reyes’s complaint relates not to whether he tossed out the cocaine, but when he did so. At trial, the

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officers testified the cocaine was discarded while Reyes was driving down the highway and before

he yielded to the motorcycle officer’s show of authority. No evidence was presented to contest this

testimony. Because the undisputed evidence showed the cocaine was abandoned before any seizure

occurred, federal and state constitutional protections from unreasonable seizures were not implicated.

See Hernandez, 963 S.W.2d at 925. The evidence also showed that when the motorcycle officer

initiated the stop, Reyes was exceeding the speed limit and violating the law. Again, this evidence

was uncontested. The violation of a traffic law in an officer’s presence is sufficient authority to

initiate a stop. Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982).

       Because the evidence heard by the jury did not raise a material fact issue as to the lawfulness

of the officers’ conduct, Reyes failed to satisfy the Madden requirements and was not entitled to an

article 38.23(a) instruction. See Madden, 242 S.W.3d at 510. We conclude the trial court did not err

by refusing to submit an article 38.23(a) instruction to the jury. Reyes’s issue is overruled.

                                           CONCLUSION

       The judgment of the trial court is affirmed.

                                                              Karen Angelini, Justice



DO NOT PUBLISH




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