                                                                                 ACCEPTED
                                                                             05-14-01370-CR
                                                                  FIFTH COURT OF APPEALS
                                                                             DALLAS, TEXAS
                                                                        6/24/2015 8:22:23 AM
                                                                                  LISA MATZ
                                                                                      CLERK



                        NO. 05-14-01370-CR
                                                    FILED IN
                                             5th COURT OF APPEALS
                                                 DALLAS, TEXAS
                 IN THE COURT OF APPEALS
                                             6/24/2015 8:22:23 AM
              FOR THE FIFTH DISTRICT OF TEXAS      LISA MATZ
                     AT DALLAS, TEXAS                Clerk




                     ANDRE TODD WATSON,
                                Appellant
                             v.

                      THE STATE OF TEXAS,
                                 Appellee



          On appeal from Criminal District Court Number Four
                         Dallas County, Texas
                      Cause Number F13-62530-K


                          STATE'S BRIEF



                                     Counsel of Record:
SUSAN HAWK                           KIMBERLY J. DUNCAN
CRIMINAL DISTRICT ATTORNEY           ASSISTANT DISTRICT ATTORNEY
DALLAS COUNTY, TEXAS                 STATE BAR NO. 24051190
                                     FRANK CROWLEY COURTS BLDG.
                                     133 N. RIVERFRONT BLVD., LB-19
MARISA ELMORE                        DALLAS, TEXAS 75207-4399
ASSISTANT DISTRICT ATTORNEY          (214) 653-3629/(214) 653-3643 (FAX)
DALLAS COUNTY, TEXAS                 Kimberly.Duncan@dallascounty.org

              ATTORNEYS FOR THE STATE OF TEXAS
                                          TABLE OF CONTENTS

INDEX OF AUTHORITIES ..................................................................................... ii
STATEMENT OF THE CASE ..................................................................................1
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF ARGUMENT .................................................................................7
ARGUMENT .............................................................................................................8
   Response to Appellant’s Issue: The trial court properly denied Appellant’s request
   for a jury instruction under article 38.23 of the Texas Code of Criminal
   Procedure ...............................................................................................................8
      A. Standard of Review .........................................................................................8
      B. Applicable Law ...............................................................................................9
      C. Application of Law to Facts..........................................................................11
   State’s Cross-Point: The judgment should be modified to accurately reflect
   Appellant’s plea of not guilty ...............................................................................17
      A. Applicable Law .............................................................................................17
      B. Application of Law to Facts ..........................................................................18
PRAYER ..................................................................................................................19
CERTIFICATE OF COMPLIANCE .......................................................................19
CERTIFICATE OF SERVICE ................................................................................19
                                    INDEX OF AUTHORITIES

Cases
Abron v. State,
 997 S.W.2d 281 (Tex. App.—Dallas 1998, pet. ref’d) ........................................18
Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) ........................................8
Asberry v. State,
  813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d) ........................................18
Bigley v. State,
  865 S.W.2d 26 (Tex. Crim. App. 1993) ...............................................................17
Correa v. State,
 No. 05-12-01197-CR, 2014 Tex. App. LEXIS 4792 (Tex. App.—Dallas May 2,
 2014, no pet.) (mem. op., not designated for publication) ...................................16
Grubbs v. State,
 440 S.W.3d 130 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) .... 13, 14, 16
Holmes v. State,
 223 S.W.3d 728 (Tex. App.—Houston [14th Dist.] 2007), aff’d, 248 S.W.3d 194
 (Tex. Crim. App. 2008) ........................................................................................13
Madden v. State,
 242 S.W.3d 504 (Tex. Crim. App. 2007) ............................................ 9, 10, 14, 17
Mbugua v. State,
 312 S.W.3d 657 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) ....................17
Nolan v. State,
 39 S.W.3d 697 (Tex. App.—Houston [1st Dist.] 2001, no pet.)..........................18
Robinson v. State,
 377 S.W.3d 712 (Tex. Crim. App. 2012) .............................................................10
Spence v. State,
  325 S.W.3d 646 (Tex. Crim. App. 2010) .............................................................16
Tottenham v. State,
  285 S.W.3d 19 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) ........................8



                                                        ii
Vogel v. State,
 No. 05-11-01669-CR, 2014 Tex. App. LEXIS 13327 (Tex. App.—Dallas Dec.
 11, 2014, no pet.) (mem. op. on remand, not designated for publication) .... 14, 15
Warner v. State,
 245 S.W.3d 458 (Tex. Crim. App. 2008) ...............................................................8
Statutes
Tex. Code Crim. Proc. Ann. art. 14.01 (West 2005) ...............................................15
Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) .................................................9
Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005) .................................................9
Tex. Penal Code Ann. § 22.01 (West Supp. 2014) ....................................................1
Tex. Penal Code Ann. § 22.02 (West 2011) ..............................................................1
Rule
Tex. R. App. P. 43.2 .................................................................................................17




                                                          iii
TO THE HONORABLE COURT OF APPEALS:

      The State of Texas respectfully submits this brief in response to the brief of

Appellant, Andre Todd Watson.

                         STATEMENT OF THE CASE

      Appellant pled not guilty to an indictment for aggravated assault with a deadly

weapon. (CR: 11, 127, 139; RR 2: 5; RR 3: 13). See Tex. Penal Code Ann. § 22.01 (West

Supp. 2014), § 22.02 (West 2011). A Dallas County jury convicted Appellant of the

offense as alleged in the indictment. (CR: 139, 145; RR 4: 53). Appellant initially pled

not true to two enhancement paragraphs alleging prior convictions, but after the

punishment phase began, the parties entered into an agreement regarding sentencing.

(CR: 141-44; RR 4: 54; RR 5: 4-5). Thereafter, Appellant pled true to the enhancement

paragraphs, and the trial court accepted his pleas of true and sentenced him to twenty-

five years’ confinement in the Texas Department of Criminal Justice in accordance with

the agreement. (CR: 141-45; RR 5: 4-5). The trial court overruled Appellant’s motion for

new trial. (CR: 151). Appellant filed a timely notice of appeal. (CR: 152).

                            STATEMENT OF FACTS

      In June of 2009, James Cousins left his life of drug and alcohol use in Atlanta,

Georgia, and found his way to Dallas, Texas, to start a new life. (RR 3: 15). Cousins

initially stayed at The Bridge, a homeless shelter in downtown Dallas. (RR 3: 16).


                                          1
Through a program at The Bridge, he obtained work with a company called Lifenet; he

eventually became a full-time Lifenet employee and got his own place to live. (RR 3: 16-

17).

       On November 15, 2013, Cousins was working for Lifenet, cleaning The Bridge.

(RR 3: 17-18). He clocked out at 7:30 p.m. for his hour-long lunch break and walked to a

7-Eleven convenience store located about three blocks from The Bridge. (RR 3: 17-18).

When he arrived, he filled his cup with soda and also purchased an éclair and two

bananas. (RR 3: 18-19). He heard two men arguing in a nearby parking lot when he

exited the store. (RR 3: 19). He avoided the men and walked to the corner to wait for the

light to change. (RR 3: 19). After crossing Harwood Street, he again waited for the light

to change to cross Jackson Street. (RR 3: 20). At that time, he saw one of the two men,

later identified as Appellant, “standing at the opposite corner.” (RR 3: 20). Cousins

started to cross Jackson Street when the light changed, but Appellant came up behind

him and struck him in the face twice before pulling out a red-handled razor knife,

grabbing Cousins’s shirt, and slashing at him. (RR 3: 20-21, 25). Appellant sliced

Cousins’s shirt three times. (RR 3: 21). He said, “You hear me now.” (RR 3: 21).

Cousins and the other man involved in the earlier argument with Appellant told

Appellant to let go of Cousins. (RR 3: 21). Eventually, Appellant released Cousins and

went back across the street. (RR 3: 21).


                                           2
      Cousins kept an eye on Appellant while trying to call 911. (RR 3: 21). He saw

Appellant enter the 7-Eleven. (RR 3: 27). As Cousins reached the corner, he learned that

a safety patrol officer was in the immediate vicinity. (RR 3: 21). When he saw the safety

patrol officer, Cousins said, “[T]hat’s the gentleman that just attacked me,” as Appellant

exited the 7-Eleven. (RR 3: 21, 27). The safety patrol officer crossed the street to

approach Appellant, but Appellant did not stop. (RR 3: 31, 39). Another safety patrol

officer arrived on a bicycle and followed Appellant. (RR 3: 40). At that point, Cousins

lost sight of Appellant and the safety patrol officer; he stayed where he was until Dallas

Police (DPD) officers arrived at the parking lot across from the 7-Eleven. (RR 3: 41). He

told the officers what happened. (RR 3: 41). Soon, another DPD patrol car arrived with

Appellant in the backseat. (RR 3: 41). Cousins identified Appellant as the person who

attacked him. (RR 3: 41). After officers photographed his facial injuries and his shirt,

Cousins returned to work at The Bridge. (RR 3: 41-42).

      At trial, Cousins identified Appellant as the man who attacked him; he explained

that Appellant was “looking more healthier” at the time of trial than he did at the time of

the attack. (RR 3: 24). Cousins also testified that it hurt when Appellant punched him in

the face and that he was scared when Appellant pulled the knife on him because he

thought Appellant was trying to inflict injury on him. (RR 3: 32). In addition to Cousins,

the safety patrol officers and two DPD officers testified for the State.


                                           3
      Tony Creswell testified he had been a security officer with Downtown Safety

Patrol for five years and also had previous experience in security work. (RR 3: 70). He

explained that the Downtown Safety Patrol was “sort of like the security force for the

Central Business District” and served as “an extra set of eyes and ears for the police

department.” (RR 3: 71). Creswell explained that, although much of their training

came from DPD officers, the Downtown Safety Patrol officers were not certified

peace officers. (RR 3: 71).

      Creswell testified about his involvement in this case. On November 15, 2013,

he was getting off the bus near Main Street Gardens when he learned that an assault

had taken place. (RR 3: 72-73). After he was alerted that Appellant was the suspect, he

approached Appellant and said, “What’s up, man?” (RR 3: 74). Appellant did not

respond, so Creswell followed him, which he explained was something he was trained

to do. (RR 3: 75). Creswell also radioed for back-up on his two-way radio. (RR 3: 75).

Suddenly, Appellant turned around in the middle of Harwood Street, pulled out a red-

handled box cutter, and “flipped” open the blade. (RR 3: 75-76). When Appellant

started walking toward him with the open box cutter, Creswell pulled out his “OC

spray,” a police-grade mace, and sprayed a short burst of spray in Appellant’s face.

(RR 3: 77). Appellant wiped his face and walked away. (RR 3: 78).




                                          4
      Meanwhile, Creswell’s backup, Larry Jimerson, arrived on his bicycle. (RR 3: 78,

105). Jimerson, who had several years’ experience as a security guard, saw Appellant

put his hand up toward Creswell “in an aggressive manner” before Creswell administered

the OC spray. (RR 3: 105-09). Jimerson also saw a box cutter or knife in Appellant’s

hand at the time; he thought Appellant was trying to cut Creswell. (RR 3: 109-10).

Jimerson followed Appellant a short distance and asked him to “stop, please stop, stop.”

(RR 3: 109). Before Jimerson reached Appellant, Appellant threw his knife across Wood

Street. (RR 3: 78, 109-10). Jimerson then dismounted his bicycle and took Appellant to

the ground. (RR 3: 78, 110-12). Very soon thereafter, DPD officers arrived at the scene

and placed Appellant under arrest. (RR 3: 113).

      DPD Officer Donald Dean was on patrol with his partner, Officer Joshua Vogel,

when they received a dispatch regarding the incident. (RR 3: 125, 152). They responded

to the scene where Officer Dean spoke to Cousins. (RR 3: 126, 152-53). While Officer

Dean spoke to Cousins, a security officer with the Downtown Safety Patrol rode by on

his bicycle, saying, “Hey, we’ve got the suspect to this incident about a block away. My

guys are down there.” (RR 3: 127, 153). Officer Dean stayed with Cousins while Officer

Vogel jumped into Officer Bill Martinez’s patrol car to follow the safety patrol officer.

(RR 3: 127, 129, 153). When Officers Vogel and Martinez arrived, Jimerson had the

highly-agitated Appellant on the ground. (RR 3: 155).


                                          5
      Officer Vogel handcuffed Appellant for officer safety. (RR 3: 155). After

Jimerson told him Appellant had tossed the knife used in this incident, Officer Vogel

retrieved the knife from the road and collected it as evidence. (RR 3: 156-57). Dallas

Fire and Rescue responded to the scene to make sure Appellant was medically clear

after being sprayed with mace; thereafter, Officer Vogel transported Appellant back to

the original offense location and then to jail. (RR 3: 158). A subsequent police effort

to obtain video surveillance footage from any area cameras was unsuccessful. (RR 3:

130-31, 158).

      At the conclusion of the State’s case-in-chief, Appellant’s counsel requested a

directed verdict. (RR 4: 8-9). The trial court denied the motion as well as Appellant’s

request for a jury instruction under article 38.23 of the Texas Code of Criminal

Procedure. (RR 4: 9-12, 15). Thereafter, Appellant presented the testimony of Donald

Wojan, a licensed private investigator, who had obtained Appellant’s clothing, visited

the scene of the offense and surrounding area, and unsuccessfully attempted to obtain

surveillance video from the area. (RR 4: 16-30). After hearing the jury charge and

arguments of the parties, the jury found Appellant guilty of aggravated assault with a

deadly weapon as alleged in the indictment. (CR: 139, 145; RR 4: 53).




                                          6
      When the punishment phase began, Appellant initially pled not true to two

enhancement paragraphs alleging prior felony convictions, but when the proceeding

resumed the next day, the parties entered into an agreement regarding sentencing.

(CR: 141-44; RR 4: 54; RR 5: 4-5). Pursuant to the agreement, Appellant pled true to

the enhancement paragraphs, and the trial court accepted his pleas of true and

sentenced him to twenty-five years’ confinement in the Texas Department of Criminal

Justice. (CR: 141-45; RR 5: 4-5).

                           SUMMARY OF ARGUMENT

      A defendant is entitled to an instruction under article 38.23 of the Texas Code

of Criminal Procedure if there are disputed factual issues that are material to his claim

of a constitutional violation that would render evidence inadmissible. In the absence of

a disputed factual issue, the legality of the conduct is determined by the trial court

alone. Because there were no contested factual issues as required for an article 38.23

instruction, the trial court did not abuse its discretion in denying Appellant’s request

for such an instruction. Accordingly, Appellant’s sole issue on appeal should be

decided against him. Furthermore, because the record clearly reflects that Appellant

pled not guilty to the charged offense, the State respectfully requests that the judgment

be modified to accurately reflect Appellant’s plea. The judgment of the trial court

should be affirmed as modified.


                                           7
                                    ARGUMENT

Response to Appellant’s Issue: The trial court properly denied Appellant’s request
for a jury instruction under article 38.23 of the Texas Code of Criminal Procedure.

      The record does not reflect any disputed factual issues material to Appellant’s

claim of a constitutional violation that would render evidence inadmissible.

Accordingly, the trial court properly denied Appellant’s request, and this Honorable

Court should decide Appellant’s sole issue against him.

A. Standard of Review

      In analyzing a jury-charge issue, the reviewing court must first determine if

error exists. See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op.

on reh’g); Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d). If the court finds error, the court should then consider whether an

objection to the charge was made and analyze for harm. Tottenham, 285 S.W.3d at 30;

see also Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). Error properly

preserved by a timely objection to the charge will require reversal “as long as the error

is not harmless.” Almanza, 686 S.W.2d at 171. When the error is not preserved,

reversal is appropriate only if the error is so egregious and created such harm that it

denied the defendant a fair and impartial trial. See id.




                                           8
B. Applicable Law

      The trial judge must “distinctly set[] forth the law applicable to the case” in the

jury charge. Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). In proper cases, the

“law applicable to the case” will include an instruction under article 38.23 of the Texas

Code of Criminal Procedure, which prohibits the admission of illegally-obtained

evidence. Article 38.23 requires that, in any case where a fact issue is raised whether

evidence was obtained in violation of the constitution or laws of the United States or the

State of Texas, “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). The terms of article 38.23 are mandatory, and

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).

      A defendant’s right to the submission of a jury instruction under article 38.23 is,

however, “limited to disputed issues of fact that are material to his claim of a

constitutional or statutory violation that would render evidence inadmissible.” Id. A

defendant must meet three requirements before he is entitled to the submission of a jury

instruction under article 38.23: (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) that contested


                                            9
factual issue must be material to the lawfulness of the challenged conduct in obtaining

the evidence. Id.

       Under the first requirement, there must be a genuine dispute about a material

issue of fact before an article 38.23 instruction is warranted; if there is no disputed fact

issue, the legality of the conduct is determined by the court alone, as a matter of law.

Id. “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. Crim. App. 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. Furthermore, 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 id. at

516. The disputed fact issue must be essential to deciding the lawfulness of the

challenged conduct. Id. at 511.


                                            10
C. Application of Law to Facts

      Appellant’s counsel requested an article 38.23 instruction at trial, arguing as

follows:

            I do believe there’s been several instances in this case when
            improper illegal actions have been taken on the part of the
            Safety Patrol Officers. I know that I was concerned about
            asking for this initially because they were not state actors. I
            do think they were acting in conjunction with the police,
            and believed they were the whole time, but I think this is
            clear that any person that obtains evidence illegally that is
            then relied upon and tried to be admitted in court – and I do
            believe the investigation was not done – I mean, we haven’t
            seen any evidence that it was done by any kind of protocol,
            any kind of constitutional safeguards that dictate what the
            police do in their investigation. I don’t believe any of that
            was followed in the Safety Patrol investigation.

            I also believe the detention of [Appellant] at the scene was
            done in an unlawful manner by the Safety Patrol, based on
            hearsay, based on possible uncontroverted statements by
            passerby. You know, I think it’s – well, nothing is clear
            after the testimony, but I do think it’s clear, nobody really
            witnessed this except the complaining witness, and he
            didn’t even properly identify [Appellant].

            I also believe that the police spoke to the fact that they
            would have done an entirely different protocol as far as
            identifying [Appellant] at the scene, had they believed that
            either the complaining witness had lost track of the attacker
            at some point, which they didn’t know at the time, which
            has come out in testimony. The complaining witness says,
            yeah, he went into 7-Eleven, I don’t know, for several
            minutes.




                                          11
               They said they would have also followed a different
               procedure had they thought that the Safety Patrol had not
               witnessed the whole thing. They thought officer – they
               thought security officer Jimerson witnessed the actual
               attack. I mean, they show up and put a rubber stamp on it,
               which you know, they knew the guy, they trusted him.
               That’s fine, but Officer Jimerson was not even the first guy
               on the scene, he definitely didn’t witness the original attack
               on Mr. Cousins.

               So, I think that actually directly implicates the Fourth
               Amendment because those are police officers, I think,
               stating that, you know, had they known these things that we
               actually know, they would have done it differently. So, it is
               – it is suppressible at that point. And I think that the jury
               has a right to consider the way we got here, because I do
               think after the testimony and all the inconsistencies, they
               should be allowed to consider that.

(RR 4: 11-12). After taking time to consider Appellant’s request for an article 38.23

instruction, the trial court denied his request. (RR 4: 12, 15).

      Appellant argues the trial court’s denial of his request constituted reversible

error. He cites case law pertaining to lawful arrests by non-police officials as well as

the law regarding abandonment of property. App. Br. at 18-19. Ultimately, Appellant

argues that “the evidence adduced at trial raised the issue of whether the knife that the

State entered as exhibit 20 was illegally obtained and therefore the trial court erred in

not issuing the requested charge under article 38.23.” App. Br. at 24. Appellant has

not, however, identified a genuine issue of material fact to warrant an article 38.23

instruction.

                                            12
       Unlike Holmes v. State, which Appellant relies on in support on his argument,

the record in this case does not raise a fact issue regarding the legality of the seizure of

any evidence. App. Br. at 17-18, 26. See Holmes v. State, 223 S.W.3d 728, 730-31

(Tex. App.—Houston [14th Dist.] 2007), aff’d, 248 S.W.3d 194 (Tex. Crim. App.

2008). In Holmes, the intermediate court of appeals concluded that the trial court erred

in refusing the defendant’s request for an article 38.23 instruction, finding the

defendant had raised a fact issue about the legality of cocaine found in a crack pipe in

Holmes’s pocket after officers detained him. Id. Holmes testified, and his testimony

conflicted with the arresting officers’ account of the events leading up to his arrest. Id.

This case does not present such a dispute regarding any issue of material fact.

       Rather, this case is similar to Grubbs v. State, in which the appellate court

concluded the trial court did not err in omitting an article 38.23 instruction from the

jury charge. See Grubbs v. State, 440 S.W.3d 130, 137-39 (Tex. App.—Houston [14th

Dist.] 2013, pet. ref’d). Grubbs argued that a fact issue was raised at his trial whether

the arresting officers had reasonable suspicion to stop him or probable cause to detain

him; he claimed that by “‘consistently challeng[ing] each witness regarding the lack of

reasonable suspicion to stop him or the probable cause to arrest him,’” he raised a

factual dispute. Id. at 138. The reviewing court, however, concluded “the implication

raised by Grubbs’s questioning does not, by itself, raise a disputed fact issue.” Id.


                                            13
      Importantly, the court explained, “A cross-examiner’s questions do not create a

conflict in the evidence, although the witnesses’ answers might.” Id. (citing Madden,

242 S.W.3d at 513). Thus, the court found no conflict in the evidence that raised a

disputed fact issue material to the legal question of reasonable suspicion to detain

Grubbs because the undisputed testimony was that Grubbs initially flagged down the

officer who arrested him. Grubbs, 440 S.W.3d at 138.

      Similarly, in Vogel v. State, this Honorable Court rejected the defendant’s claim

that he was entitled to an article 38.23 instruction. See Vogel v. State, No. 05-11-

01669-CR, 2014 Tex. App. LEXIS 13327 (Tex. App.—Dallas Dec. 11, 2014, no pet.)

(mem. op. on remand, not designated for publication). Vogel, who was stopped

because one of his headlights was out, was ultimately arrested for DWI after the

officer who stopped him smelled alcohol emanating from the car and on Vogel’s

breath. Id. at *2. Vogel testified at trial that he had consumed only two alcoholic

drinks the night of his arrest; he testified that “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.” Id. Vogel claimed on

appeal that there was an “issue of fact” as to whether the facts upon which Coffie

relied to detain Vogel — the smell of alcohol and Vogel’s admission that he may have

had a single drink — sufficed to show reasonable suspicion. Id. at *4.


                                           14
        Significantly, this Court concluded that whether the facts amounted to

reasonable suspicion was a question of law, not a question of fact for the jury to

determine. Id. Furthermore, Vogel was not entitled to an instruction under article

38.23 because the evidence did not raise a fact issue whether the arresting officer

smelled alcohol on him: Vogel’s testimony that he did not “think” the officer could

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

smelled of alcohol was not “affirmative evidence” he did not smell of alcohol. Id. at

*4-5.

        Likewise, the evidence in this case did not present an issue of disputed fact

entitling Appellant to an article 38.23 instruction. Appellant claims the evidence

“shows that Jimerson illegally pursued and detained [him], which precipitated the

involuntary abandonment of the knife,” and “includes a version of events in which

Jimerson wrongly detained him.” App. Br. at 26. His argument is not supported by the

record. No testimony contradicted Jimerson’s testimony that he saw Appellant put his

hand up toward Creswell “in an aggressive manner” before Creswell administered the

OC spray, and that Jimerson saw a box cutter or knife in Appellant’s hand at the time,

which he thought Appellant was trying to use to cut Creswell. (RR 3: 105-10).1


1
 Notably, “[a] peace officer or any other person, may, without a warrant, arrest an offender when the
offense is committed in his presence or within his view, if the offense is one classed as a felony or as
an offense against the public peace.” Tex. Code Crim. Proc. Ann. art. 14.01(a) (West 2005).

                                                  15
      At that point, Jimerson followed Appellant a short distance and asked him to

“stop, please stop, stop.” (RR 3: 109). Before Jimerson reached Appellant, Appellant

threw his knife across Wood Street. (RR 3: 78, 109-10). Jimerson then dismounted his

bicycle and took Appellant to the ground. (RR 3: 78, 110-12). Very soon thereafter,

DPD officers arrived at the scene, placed Appellant under arrest, and collected the

knife. (RR 3: 113, 156-57).

       Appellant has not identified a factual issue regarding the detention or the

legality of the seizure of the knife that would have been appropriate for the jury’s

consideration. The question of whether Jimerson legally detained Appellant was an

issue of law. See, e.g., Spence v. State, 325 S.W.3d 646, 653-54 (Tex. Crim. App.

2010) (concluding that proper placement of a license plate was an issue of law not

fact, and factual dispute about where car was parked was not material); Grubbs, 440

S.W.3d at 138 (finding no conflict in the evidence that raised a disputed fact issue

material to the legal question of reasonable suspicion to detain Grubbs because the

undisputed testimony presented at trial by all three officers was that Grubbs initially

flagged down the officer who arrested him); Correa v. State, No. 05-12-01197-CR,

2014 Tex. App. LEXIS 4792, at *5 (Tex. App.—Dallas May 2, 2014, no pet.) (mem.

op., not designated for publication) (overruling the defendant’s point of error because

he proffered no evidence that operator did not remain in Correa’s presence for fifteen


                                          16
minutes); Mbugua v. State, 312 S.W.3d 657, 669 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d) (finding no error in jury charge because there was no conflict in the

evidence raising a disputed fact that would have mandated a 38.23 jury instruction);

Shpikula v. State, 68 S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d) (explaining that the jury’s right to disbelieve officers’ testimony did not create a

factual dispute requiring a jury instruction under article 38.23).

       Appellant has not directed this Court to—and the record does not contain—any

affirmative evidence of a factual dispute that would have entitled Appellant to an

instruction under article 38.23. See Madden, 242 S.W.3d at 513. Accordingly, the trial

court properly instructed the jury. Appellant’s sole issue should be decided against

him.

State’s Cross-Point: The judgment should be modified to accurately reflect
Appellant’s plea of not guilty.

       The judgment states that Appellant pled nolo contendere to the indictment in

this case, but the record clearly reflects that he pled not guilty. The judgment should

be modified to accurately reflect Appellant’s not-guilty plea.

A. Applicable Law

       Where the record contains the necessary information to do so, the court on

appeal has the authority to modify incorrect judgments. Tex. R. App. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Abron v. State, 997

                                            17
S.W.2d 281, 282 (Tex. App.—Dallas 1998, pet. ref’d). “An appellate court has the

power to correct and reform a trial court judgment ‘to make the record speak the truth

when it has the necessary data and information to do so, or make any appropriate

order as the law and nature of the case may require.’” Nolan v. State, 39 S.W.3d 697,

698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813

S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d)).

B. Application of Law to Facts

      At trial, Appellant entered a plea of not guilty both outside the presence of the

jury and when arraigned in the presence of the jury. (RR 2: 5; RR 3: 13). The written

judgment, however, incorrectly states Appellant’s plea to the offense was “NOLO

CONTENDERE.” (CR: 145). Because this Honorable Court has the necessary

information to modify the judgment, the State respectfully requests that the judgment

be modified to accurately reflect Appellant’s plea of not guilty in this case.




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                                      PRAYER

      The State prays this Honorable Court will affirm the judgment of the trial court

as modified.

                                               Respectfully submitted,

                                               _________________________________
Susan Hawk                                     Kimberly J. Duncan
Criminal District Attorney                     Assistant District Attorney
Dallas County, Texas                           Frank Crowley Courts Building
                                               133 N. Riverfront Blvd., LB19
                                               Dallas, Texas 75207-4399
                                               (214) 653-3629/(214) 653-3643 (FAX)
                                               Kimberly.Duncan@dallascounty.org

                       CERTIFICATE OF COMPLIANCE

      I hereby certify that of the foregoing brief, inclusive of all contents, is 5,046
words in length, according to Microsoft Word, which was used to prepare the brief,
and that the foregoing brief complies with the word-count limit and typeface
conventions required by the Texas Rules of Appellate Procedure.

                                               __________________________
                                               KIMBERLY J. DUNCAN
                                               Assistant District Attorney

                          CERTIFICATE OF SERVICE

     I hereby certify that a true copy of the foregoing brief has been served on the
Honorable Niles Illich, Counsel for Appellant, via electronic service on June 24, 2015.


                                               __________________________
                                               KIMBERLY J. DUNCAN
                                               Assistant District Attorney


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