                             NUMBER 13-17-00042-CR

                                COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


RAUL E. ALVAREZ,                                                                     Appellant,

                                                     v.

THE STATE OF TEXAS,                                                                  Appellee.


                 On appeal from the County Court at Law No. 9
                           of Travis County, Texas.


                          MEMORANDUM OPINION1

           Before Justices Contreras, Longoria, and Hinojosa
               Memorandum Opinion by Justice Hinojosa

       Appellant Raul E. Alvarez appeals his conviction for driving while intoxicated-

second offense (DWI), a class A misdemeanor. See TEX. PENAL CODE ANN. § 49.09(a)



       1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV’T CODE
ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
(West, Westlaw through 2017 1st C.S.). A jury returned a guilty verdict, and the trial

court sentenced appellant to 120 days’ confinement in the county jail. By one issue,

appellant argues that the trial court erred by denying his request for a jury instruction

pursuant to article 38.23 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM.

PROC. ANN. art. 38.23 (West, Westlaw through 2017 1st C.S.). We affirm.

                                    I.     BACKGROUND

       Appellant was charged by information with DWI. See TEX. PENAL CODE ANN.

§ 49.09.   The trial court denied appellant’s pre-trial motion to suppress evidence

obtained following the traffic stop that resulted in his arrest. At trial, Officer Manuel

Delgado-Eberhardt with the Austin Police Department testified concerning the traffic stop

and DWI investigation.      Officer Delgado-Eberhardt observed a gray Saturn vehicle

drifting left and touching the lane divider on Interstate Highway 35 (I-35) in Travis County,

Texas. The driver moved back to the center of the lane before drifting left again. At that

time, Officer Delgado-Eberhardt activated his vehicle’s camera. He observed the vehicle

continue to “drift and swerve” within its lane before exiting the highway. Officer Delgado-

Eberhardt followed the car to the intersection of Cesar Chavez and the I-35 service road.

He observed the vehicle initiate a left turn in front of oncoming traffic before reversing and

stopping very close to his patrol car. The vehicle waited for a protected-turn arrow before

turning onto the service road. Officer Delgado-Eberhardt decided to initiate a traffic stop

because he “became concerned that there was something wrong with the driver.” He

explained “it can be anything from sleepy, a medical condition, intoxication, [or] somebody

is fiddling with their phone[.]” On cross-examination Officer Delgado-Eberhardt further


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clarified that the basis for stopping the vehicle was his belief “that there was some sort of

medical emergency or possible intoxication[.]” Officer Delgado-Eberhardt stated that the

“drifting and swerving” could constitute the offense of failing to maintain a single, marked

lane. See TEX. TRANSP. CODE ANN. § 545.060 (West, Westlaw through 2017 1st C.S.).

However, he stated that he did not base his stop on a perceived traffic violation because

he was unsure whether an offense had occurred.

       Officer Delgado-Eberhardt approached the vehicle and identified appellant as the

driver. Appellant had a strong odor of alcohol on his breath, slurred speech, and glassy

and watery eyes. Officer Delgado-Eberhardt discovered an open container of beer in

the vehicle which was cold to the touch. At that point, Officer Delgado-Eberhardt asked

appellant to step out of the vehicle. In response to questioning, appellant stated that he

drank a six-pack of 16 oz. beer that night. Officer Delgado-Eberhardt proceeded to

administer standardized field sobriety tests, during which appellant exhibited signs of

intoxication.   He placed appellant under arrest for DWI.        Officer Delgado-Eberhardt

administered a portable breath test, which indicated the presence of alcohol in appellant’s

system.    Appellant declined to provide a blood sample for testing.         The trial court

admitted the dash-cam video of the traffic stop into evidence.

       During the jury charge conference, appellant requested the inclusion of the

following jury instruction pursuant to article 38.23 of the code of criminal procedure:

       You are instructed that no evidence obtained by an officer or other person
       in violation of any provisions of the Constitution or laws of the State of
       Texas, or of the Constitution or laws of the United States of America, shall
       be admitted in evidence against the accused on the trial of any criminal
       case. An officer is permitted to make a temporary investigative detention
       of a motorist if the officers have specific articulable facts, which, taken

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        together with rational inferences from those facts, lead them to conclude
        that a person detained actually is, has been, or soon will be engaged in
        criminal activity.

        Under the laws of Texas, a driver must drive as nearly as practical entirely
        within a single lane, and may not move from the lane unless that movement
        may be made safely.

        Now, bearing in mind if you do not find beyond a reasonable doubt from the
        evidence that, on the occasion in question [appellant] failed to drive as
        nearly as practical entirely within a single lane, and did not move from the
        lane unless that movement could be made safely, immediately preceding
        his stop and detention by the officers herein, then such stopping of the
        accused would be illegal and you will disregard any and all evidence
        obtained as a result of the stop of [appellant’s] vehicle by the officer and you
        will not consider such evidence for any purpose whatsoever.

        However, if you find beyond a reasonable doubt from the evidence that, on
        the occasion in question [appellant] failed to drive as nearly as practical
        entirely within a single lane, and did not move from the lane unless that
        movement could be made safely, immediately preceding his stop and
        detention by the officers herein, then you may consider the evidence
        obtained by the officer as a result of the search.

The trial court denied the requested instruction. 2 The jury returned a guilty verdict. This

appeal followed.

                                        II.     JURY INSTRUCTION

A.      Standard of Review and Applicable Law

        In analyzing a jury-charge issue, we first determine whether error exists. See

Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984) (op. on reh’g); Tottenham

v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). If we find

error, then we consider whether the error was harmful under the appropriate standard.



         2 Appellant also requested an instruction directing the jury to decide the lawfulness of the traffic

stop in relation to the officer’s suspicion that appellant was driving while intoxicated. The trial court denied
this requested instruction as well, but appellant does not raise an issue challenging this ruling.
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Tottenham, 285 S.W.3d at 30; see also Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim.

App. 2008) (“The failure to preserve jury-charge error is not a bar to appellate review, but

rather it establishes the degree of harm necessary for reversal.”).

       Article 38.23 provides in part as follows:

       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). If a fact issue exists concerning whether

evidence was unlawfully obtained, then a trial court must instruct the jury that if it believes

that the evidence was obtained in violation of article 38.23, then the jury should disregard

the evidence so obtained. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App.

2007); Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000). The evidence must

(1) raise an issue of fact; (2) be affirmatively contested; and (3) be material to the

lawfulness of the challenged conduct. Madden, 242 S.W.3d at 510. The defendant

must request an instruction on a specific historical fact. Id. at 511. “Where the issue

raised by the evidence at trial does not involve controverted historical facts, but only the

proper application of the law to undisputed facts, that issue is properly left to the

determination of the trial court.” Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim.

App. 2012).

       To conduct a traffic stop in compliance with the Fourth Amendment, an officer must

have reasonable suspicion. Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App.

2012). Reasonable suspicion exists “when an officer is aware of ‘specific articulable

facts that, when combined with rational inferences from those facts, would lead him to

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reasonably suspect that a particular person has engaged or is (or soon will be) engaging

in criminal activity.’” Id. (quoting York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App.

2011)). The reasonable suspicion standard is an objective one, and the subjective intent

of the officer conducting the investigation is irrelevant. Id. The trial court decides what

quality and quantum of facts are necessary to establish reasonable suspicion. Madden,

242 S.W.3d at 511. Only if one or more of those necessary facts are disputed does the

trial court ask the jury to decide whether the officer’s belief in those facts was reasonable.

Id.

B.     Analysis

       Appellant argues that there was conflicting evidence whether he committed a traffic

violation, which he contends was the sole justification presented at trial for the traffic stop.

We disagree.

       We first start with the language of the requested instruction. As set out above,

the instruction asks the jury whether or not the State proved beyond a reasonable doubt

that appellant “failed to drive as nearly as practical entirely within a single lane, and did

not move from the lane unless that movement could be made safely, immediately

preceding his stop and detention[.]” The instruction generally tracks the language of

section 545.060 of the transportation code, titled “Driving on Roadway Laned for Traffic.”

See TEX. TRANSP. CODE ANN. § 545.060. While the instruction asks the jury whether

appellant violated section 545.060, it fails to identify a specific contested historical fact.

See Madden, 242 S.W.3d at 511 (“The jury decides facts; the judge decides the

application of the law to those facts.”).          At most, the instruction represents a


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disagreement over the legal consequences of appellant’s actions.                          Such a question

concerns the application of the law to undisputed facts, an issue that is properly left to the

determination of the trial court. See Robinson, 377 S.W.3d at 719, 721 (explaining that

the officer’s testimony that the appellant was required to use a turn signal where one

street merged into another was not a mistake about a historical fact which would justify

the traffic stop, but was rather an opinion about the proper application of law to the

undisputed historical facts); see also Hamal, 390 S.W.3d at 307 (concluding that the

appellant was not entitled to article 38.23 instruction where there was no dispute about

what the officer did, said, saw, or heard); Spence v. State, 325 S.W.3d 646, 653–54 (Tex.

Crim. App. 2010) (concluding that the proper placement of a license plate was an issue

of law not fact). Because appellant did not identify a disputed historical fact, he was not

entitled to an article 38.23 instruction. See Madden, 242 S.W.3d at 510. Further, our

review of the record, including the officer’s testimony and the dash-cam video, does not

reveal any disputed fact concerning the nature of appellant’s driving.

        In addition, Officer Delgado-Eberhardt’s justification for stopping appellant’s

vehicle was that he suspected appellant was intoxicated, distracted, or suffering from a

medical condition that impaired his driving, not that he believed appellant committed a

traffic offense. 3 Therefore, the requested instruction is not material to the lawfulness of

the officer’s actions. See Madden, 242 S.W.3d at 510 (“[I]f other facts, not in dispute,




          3 As stated above, appellant does not raise an issue challenging the trial court’s denial of his

proposed instruction concerning Officer Delgado-Eberhardt’s suspicion that appellant was driving while
intoxicated. We disagree with appellant’s contention that the State did not present evidence supporting
this justification at trial. Rather, according to the officer’s testimony, his concern that appellant was either
intoxicated, distracted, or suffering from a medical condition was the sole reason for the traffic stop.
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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.”).

       We conclude that the trial court did not err in denying appellant’s requested

instruction. See id. We overrule appellant’s sole issue.

                                    III.    CONCLUSION

       We affirm the trial court’s judgment.

                                                                 LETICIA HINOJOSA
                                                                 Justice

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

Delivered and filed the
5th day of July, 2018.




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