                                                                                PD-0483-15
                                                              COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                              Transmitted 6/1/2015 3:47:02 PM
                                                                Accepted 6/1/2015 4:21:15 PM
                                                                               ABEL ACOSTA
                                No. PD-0483-15                                         CLERK

                    TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS


RUBEN TOTTEN,                                                       Appellant

v.

THE STATE OF TEXAS,                                                  Appellee


                           Appeal from Harris County


                                   * * * * *

             STATE’S PETITION FOR DISCRETIONARY REVIEW

                                   * * * * *


                               LISA C. McMINN
                           State Prosecuting Attorney
                             Bar I.D. No. 13803300

                             JOHN R. MESSINGER
                       Assistant State Prosecuting Attorney
                              Bar I.D. No. 24053705

                                 P.O. Box 13046
                              Austin, Texas 78711
                           information@spa.texas.gov
                           512/463-1660 (Telephone)
                               512/463-5724 (Fax)


     June 1, 2015
   NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

*The parties to the trial court’s judgment are the State of Texas and Appellant, Ruben
Totten.

*The case was tried before the Honorable Brian Rains, visiting Judge of the 228th
Judicial District Court, Harris County, Texas.

*Counsel for Appellant at trial was Jimmy Ortiz, 1924 Portsmouth St., Houston,
Texas 77098.

*Counsel for Appellant on appeal was Sarah V. Wood, 1201 Franklin Street, 13th
Floor, Houston, Texas 77002.

*Counsel for the State at trial was Lauren Clemons and Adam Brodrick, Assistant
District Attorneys, 1201 Franklin Street, Suite 600, Houston, Texas 77002.

*Counsel for the State on appeal was the Honorable David Newell, former Assistant
District Attorney, 1201 Franklin, Suite 600, Houston, Texas 77002.

*Counsel for the State before this Court is John R. Messinger, Assistant State
Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.




                                          i
                                    TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

   1.      This case should be remanded because an error in the record
           invalidates the basis for the appeal.

   2.      Is the possibility that an officer detained the wrong vehicle, without
           more, determinative of the lawfulness of a detention such that an
           article 38.23 instruction is required?

   3.      Is an appellant who identifies no disputed fact issue at trial but raises
           multiple issues on appeal entitled to the “some harm” standard for
           preserved charge error?

   4.      Should the harm analysis for the failure to give an article 38.23
           instruction assume the jury would have found in the defendant’s
           favor, or is that the point of the analysis?

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

APPENDIX (Opinion of the Court of Appeals, Affidavit of Court Reporter)


                                                     ii
                                     INDEX OF AUTHORITIES

Cases
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (r’hrng). . . . . . . . . . . . 7

Hamal v. State, 390 S.W.3d 302 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . 5

Hill v. California, 401 U.S. 797 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Holmes v. State, 248 S.W.3d 194 (Tex. Crim. App. 2008).. . . . . . . . . . . . . . . . . . . 7

Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . 6, 7

Mills v. State, 296 S.W.3d 843 (Tex. App.–Austin 2009, pet. ref’d). . . . . . . . . . . . 8

Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . 8

Totten v. State, 01-14-00189-CR, 2015 Tex. App. LEXIS 3144
      (Tex. App.–Houston [1st Dist.] Mar. 31, 2015). . . . . . . . . . . . . . . . . . . passim

Vrba v. State, 69 S.W.3d 713 (Tex. App.–Waco 2002, no pet.).. . . . . . . . . . . . . . . 8

Wooten v. State, 400 S.W.3d 601 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . 8

Rules
TEX. R. APP. P. 34.6(e)(3)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Other
40 GEORGE E. DIX & ROBERT O. DAWSON, CRIMINAL PRACTICE AND
     PROCEDURE (2d ed. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5




                                                         iii
                                    No. PD-0483-15

                      TO THE COURT OF CRIMINAL APPEALS

                             OF THE STATE OF TEXAS

RUBEN TOTTEN,                                                               Appellant

v.

THE STATE OF TEXAS,                                                          Appellee


                                       * * * * *

             STATE’S PETITION FOR DISCRETIONARY REVIEW

                                       * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

         Comes now the State of Texas, by and through its State Prosecuting Attorney,

and respectfully urges this Court to grant discretionary review of the above named

cause, pursuant to the rules of appellate procedure.

                 STATEMENT REGARDING ORAL ARGUMENT

         The State does not request oral argument.

                            STATEMENT OF THE CASE

         Appellant was convicted of possession of a controlled substance and sentenced

to 25 years in prison.1 The court of appeals held that the trial court reversibly erred



     1
         1 CR 100.

                                            1
by refusing to submit an article 38.23 instruction on the lawfulness of the traffic stop

that led to the discovery of the cocaine.

                  STATEMENT OF PROCEDURAL HISTORY

        On March 31, 2015, the court of appeals reversed appellant’s conviction and

remanded for a new trial in an unpublished opinion.2 No motion for rehearing was

filed. After this Court granted an extension, the State’s petition is due on June 1,

2015.

                             GROUNDS FOR REVIEW

  1.      This case should be remanded because an error in the record
          invalidates the basis for the appeal.

  2.      Is the possibility that an officer detained the wrong vehicle, without
          more, determinative of the lawfulness of a detention such that an
          article 38.23 instruction is required?

  3.      Is an appellant who identifies no disputed fact issue at trial but raises
          multiple issues on appeal entitled to the “some harm” standard for
          preserved charge error?

  4.      Should the harm analysis for the failure to give an article 38.23
          instruction assume the jury would have found in the defendant’s
          favor, or is that the point of the analysis?

                       ARGUMENT AND AUTHORITIES

        Appellant was convicted of possession of cocaine.           He was denied an

instruction pursuant to TEX. CODE CRIM. PROC. art. 38.23(a), presumably on the


  2
        Totten v. State, 01-14-00189-CR, 2015 Tex. App. LEXIS 3144 (Tex. App.–Houston [1st
Dist.] Mar. 31, 2015) (not designated for publication).

                                            2
lawfulness of how the cocaine was obtained.3 The court of appeals held that appellant

was entitled to an instruction because, although an undercover officer requested a

traffic stop of a green Ford Ranger for turning without signaling, there is evidence

that the responding officers detained the wrong vehicle.4 In a single-sentence harm

analysis, it concluded, “Because appellant raised a fact issue about the legality of

[the] stop, and because the narcotics seized in that stop formed the basis of

appellant’s conviction, appellant suffered ‘some harm’ from the charge error.”5 Is the

possibility of a mistake, on its own, a material fact issue? If so, is being denied an

article 38.23 instruction inherently harmful?

Facts

          Officer Trant was providing undercover surveillance of a duplex complex when

he saw appellant and another man pass in a green Ford Ranger and park at the

complex.6 Within the span of several minutes, one of the truck’s occupants got out,

walked out of Trant’s view towards the duplex, and returned to the truck, which then




  3
         Appellant twice requested an article 38.23 instruction but did not identify any disputed issue
of fact, nor did he submit a written request identifying one. 3 RR 95 (“Ask for a 38.23 instruction,
Judge.”); 4 RR 3 (“The only thing, once again, defense would reurge a 38.23 instruction.”).
      4
          Slip op. at 12.
      5
          Slip op. at 13.
      6
          3 RR 11-13.

                                                  3
left.7 Trant believed this was typical of a drug transaction.8 When Trant saw the

truck turn at a stop sign without signaling, he told nearby officers Kunkel and

Betancourt to detain it.9 Trant gave them a description of the vehicle, the reason for

the stop, and its street and direction of travel.10 Kunkel and Betancourt located a

green Ford Ranger within a few seconds and detained it within four or five blocks of

the turn.11 Appellant was in the truck.12 That encounter led to discovery of crack

cocaine in appellant’s shoes.13 Soon after the arrest, Trant spoke with appellant near

the scene and seized the narcotics.14

The reversal is based on a mistake in the record

       The testimony of Trant and Kunkel is consistent except for a single exchange

in the midst of Trant’s direct examination. Trant said that he did not observe the

detention or arrest but, based on what Kunkel and Betancourt told him “description-




  7
       3 RR 13, 39 (vehicle arrived and left within five to ten minutes).
  8
       3 RR 42-44.
  9
       3 RR 15-16.
  10
       3 RR 16, 59-60, 74.
  11
       3 RR 59-60, 74.
  12
       3 RR 61.
  13
       3 RR 67.
  14
       3 RR 12, 16-17, 68.

                                                4
wise,” “It wasn’t the same vehicle.”15 It was this response, according to the court of

appeals, that created a disputed fact issue because the only valid basis for the stop

was Trant’s request and vehicle description. It appears that this crucial testimony was

transcribed in error. The court reporter who prepared the record has confirmed that

Trant’s testimony was, “It was the same vehicle.” Her affidavit is included in the

appendix. Because of the lateness of this discovery, the proper remedy is to remand

the case to the court of appeals so that it may submit the issue to the trial court for

resolution.16

Appellant was not entitled on the current record

        To be entitled to an article 38.23 instruction, three predicates must be 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.17 A fact is “material” when it is

“necessarily determinative of the admissibility of the challenged evidence.”18

Assuming the record remains unchanged, the fact that the wrong vehicle was detained

   15
        3 RR 16-17 (emphasis added).
   16
       TEX. R. APP. P. 34.6(e)(3) (“If the dispute arises after the reporter’s record has been filed in
the appellate court, that court may submit the dispute to the trial court for resolution. The trial court
must then proceed as under subparagraph (e)(2)[,]” which requires the trial court to settle the
dispute).
   17
        Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012).
   18
     40 GEORGE E. DIX & ROBERT O. DAWSON, CRIMINAL PRACTICE AND
PROCEDURE § 4.194, at 284 (2d ed. 2001).

                                                   5
is not, on its own, necessarily determinative of admissibility.

        The proper inquiry is into the reasonableness of an officer’s belief of the

existence of a fact, not its existence vel non.19 Just as the Fourth Amendment is not

violated when officers mistakenly arrest an individual matching the suspect’s

description,20 it might not have been unreasonable for Kunkel and Betancourt to stop

a green Chevrolet S-10 or Mazda B2000—both similarly sized to a Ford Ranger—or

a teal Ford Ranger.         But Trant said only that the vehicle was not the same

“description-wise” based on what he said he was told; he was never asked to clarify

what “description-wise” meant. Without some testimony, for example, that Kunkel

and Betancourt pulled over a red Ford Ranger, or a green Volkswagen Beetle, there

was no way for a jury to determine whether their belief that they pulled over the

correct vehicle was reasonable. On this record, there was no article 38.23 instruction

that would have been necessarily determinative of the lawfulness of the stop.




   19
        Madden v. State, 242 S.W.3d 504, 516 (Tex. Crim. App. 2007) (“But this is not a dispute
about the historical facts, nor is it a dispute about whether the videotape shows some of the facts
about which Trooper Lily testified. The real factual issue is whether Trooper Lily reasonably
believed that appellant was acting in a nervous manner, not whether the videotape shows appellant
acting in a nervous manner.”); id. at n.31 (citing DIX & DAWSON, § 4.198 at 90-91 (Supp. 2007))
(“As Professors Dix and Dawson have noted, courts do not always focus on the precise factual issue
that should be submitted to the jury. The factual issue is not “Did appellant’s face tremble and his
hands shake in nervousness?” It is, “Did Trooper Lily reasonably believe that appellant’s face
trembled and his hands shook in nervousness?”).
   20
        Hill v. California, 401 U.S. 797, 802-05 (1971).

                                                 6
No complaint was preserved

        Assuming there was a disputed issue of material fact fit for a jury instruction,

the court of appeals chose the wrong standard of harm.21 “The first requirement for

obtaining a jury instruction under Article 38.23, is that the defendant requests an

instruction on a specific historical fact or facts.”22 Appellant failed to do this; his two

requests for the instruction were devoid of facts. Although the disputed fact issue

might be apparent in a given case, appellant showed this is not such a case when he

raised two fact issues on appeal: whether the vehicles were different, and “whether

Trant could have seen the failure to signal as he claimed.”23 Because only the latter

issue was pursued in any form at trial, the trial court could not have known that

appellant’s nondescript article 38.23 request referred to the former. Appellant should

not benefit from the less-stringent “some harm” standard when he identified no issue

at trial, raised two alternatives on appeal, and his trial examination pointed only to the

one not addressed by the court of appeals.24



   21
       Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (r’hrg) (defining different
standards based on preservation).
   22
        Madden, 242 S.W.3d at 511.
   23
        App. Br. at 11. Nor does his boilerplate motion to suppress point towards any anticipated
fact issue. 1 CR 39-40.
  24
        See Holmes v. State, 248 S.W.3d 194, 202 n.32 (Tex. Crim. App. 2008) (“Appellant’s
proffered instruction was incorrect because it was an abstract instruction on the law and did not
specify any disputed fact issues; therefore any error should have been analyzed under Almanza’s
egregious harm standard.”).

                                               7
Harmless under any standard following proper review

        Regardless, there is no possibility of even “some” actual harm. “Harm does not

emanate from the mere failure to include the requested instruction.”25 Even the “some

harm” standard “still requires the reviewing court to find that the defendant suffered

some actual, rather than merely theoretical, harm from the error.”26 A reviewing court

is required to consider: (1) the jury charge as a whole, (2) the arguments of counsel,

(3) the entirety of the evidence, and (4) other relevant factors present in the record.27

The court of appeals conducted no such analysis. Instead, like other courts of

appeals, it concluded that the absence of an instruction that could have led to

disregarding the drug evidence in a drug case was inherently harmful.28

        Review of all the evidence shows why finding this type of error harmful per

se is a mistake. The legality of the stop was a hotly contested issue for every reason

but the “fact” that Kunkel and Betancourt pulled over the wrong vehicle. Defense



   25
        Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013).
  26
        Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (internal quotations omitted).
   27
        Id.
   28
        Slip op. at 13; see, e.g., Mills v. State, 296 S.W.3d 843, 849 (Tex. App.–Austin 2009, pet.
ref’d) (“As these were the sole facts here that could support reasonable suspicion for the traffic stop,
the jury would then have been instructed to disregard all evidence obtained from the stop, including
the cocaine that formed the basis for Mills’s conviction. Thus, Mills suffered ‘some harm’ from the
charge error.”); cf. Vrba v. State, 69 S.W.3d 713, 719 (Tex. App.–Waco 2002, no pet.) (“The record
contains no evidence of Vrba’s guilt [of DWI] independent of that obtained as a result of the stop.
Accordingly, we conclude that he suffered ‘some harm’ as a result of the omission of an article 38.23
instruction from the charge.”).

                                                   8
counsel challenged Trant’s view of the stop sign,29 his lack of knowledge of what

transpired at the duplex,30 and the lack of reason to detain the truck prior to the signal

violation.31 He also attacked Trant’s decision not to include in his police report any

reference to his undercover activity, and Kunkel’s failure to supplement it.32 This

theme carried through to closing argument. “The least we can expect is they be

honest with us in their reports, in what happened out on the streets, as they say it

happened.”33 “That goes against their honesty. It goes against their credibility.”34

“And once again, we’ve got nothing other than Officer Trant saying the vehicle failed

to use a turn signal.”35 “And Officer Trant was going to have your vehicle pulled

over because of the location itself.”36 “Even if the driver, even if the passenger say

they did [use a turn signal], so what? It’s an officer’s word against any one of us.

How do you refute that? How?”37 “The way this case went down from the beginning,



  29
       3 RR 22-36 (including photos and maps).
  30
       3 RR 36-39.
  31
       3 RR 41-43, 74-75.
  32
       3 RR 45-49, 79-83.
  33
       4 RR 5.
  34
       4 RR 9.
  35
       4 RR 10.
  36
       4 RR 10.
  37
       4 RR 12.

                                             9
ladies and gentlemen, was not right. It was not honesty.”38

       Considering the insinuation that Trant orders detentions without any regard for

their lawfulness, and that Kunkel is complicit, one would assume that Trant’s

“admission” that Kunkel and Betancourt did not even pull over a vehicle matching

the description would have been the “smoking gun.” Not only did defense counsel

not pounce on this statement, he apparently heard (or understood) it differently from

the court reporter.39 From his cross-examination of Trant:

  Q: And you testified to the jury that the vehicle that was ultimately stopped
  drove by you; is that correct?

  A. It did.40

       Even if Trant’s lone statement created a disputed fact issue, the remaining

evidence shows it is undisputed that Trant saw appellant in the green Ford Ranger

before it stopped at the duplex and that appellant was in the vehicle Kunkel and

Betancourt detained at Trant’s direction. It is also undisputed that Trant spoke to

appellant after the arrest when he collected the narcotics obtained by Kunkel and

Betancourt. That is not some bizarre coincidence. It is difficult to conceive how the

jury could have given any weight to a single answer in light of the remaining



  38
       4 RR 13.
  39
      Nor did the prosecutor acknowledge the implications of a negative answer during
examination or refer to it during closing arguments.
  40
       3 RR 23.

                                          10
cohesiveness of this short trial. When the record is viewed as a whole, “[i]t wasn’t

the same vehicle” looks more like a simple misstatement or typographical error than

it does a genuinely disputed, material fact issue the jury could have possibly decided

in appellant’s favor.

                             PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant this Petition for Discretionary Review and remand the case so that the record

dispute can be resolved. Alternatively, the State prays that the decision of the Court

of Appeals be reversed on the merits as the record stands.

                                         Respectfully submitted,
                                         LISA C. McMINN
                                         State Prosecuting Attorney
                                         Bar I.D. No. 13803300

                                           /s/ John R. Messinger
                                         JOHN R. MESSINGER
                                         Assistant State Prosecuting Attorney

                                         P.O. Box 13046
                                         Austin, Texas 78711
                                         John.Messinger@SPA.Texas.gov
                                         512/463-1660 (Telephone)
                                         512/463-5724 (Fax)




                                         11
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

the applicable portion of this document contains 3,225 words.

                                           /s/ John R. Messinger
                                         JOHN R. MESSINGER
                                         Assistant State Prosecuting Attorney

                         CERTIFICATE OF SERVICE

      The undersigned certifies that on this 1st day of June, 2015, the State’s Petition

for Discretionary Review was served electronically through the electronic filing

manager or e-mail on the parties below.

Alan Curry
Chief, Appellate Division, Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
CURRY_ALAN@dao.hctx.net

Sarah V. Wood
1201 Franklin Street, 13th Floor
Houston, Texas 77002
Sarah.Wood@pdo.hctx.net



                                           /s/ John R. Messinger
                                         JOHN R. MESSINGER
                                         Assistant State Prosecuting Attorney




                                          12
APPENDIX
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.


                                         2
      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




                                          3
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


                                         4
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


                                           6
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.

                                         7
             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.


                                            8
            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

                                         9
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

                                          10
      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).
                                            12
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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