Opinion filed July 15, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-09-00025-CR
                                        __________

                                MARK HAGA, Appellant

                                               V.

                               STATE OF TEXAS, Appellee


                      On Appeal from the County Criminal Court No. 7

                                    Tarrant County, Texas

                                Trial Court Cause No. 0960934


                              MEMORANDUM OPINION
       The jury convicted Mark Haga of a Class B misdemeanor offense of driving while
intoxicated. Pursuant to a plea bargain agreement reached after the jury returned its verdict, the
trial court assessed punishment at confinement for ninety days in the Tarrant County Jail and a
fine of $550. Following the terms of the agreement, the trial court suspended the imposition of
the sentence and placed appellant on community supervision for two years. We affirm.
       On December 30, 2004, at about 1:00 a.m., Fort Worth Police Sergeant Weldon Norman
observed the tractor part of an eighteen-wheeler in front of him on I-35. Appellant was driving
the truck. Sergeant Norman testified that appellant failed to drive the truck in a single-marked
lane and that the truck kept weaving. Sergeant Norman said that appellant weaved over onto the
shoulder of the highway a number of times. He also said that appellant failed to turn on his turn
signal prior to making lane changes and that, therefore, appellant was not complying with the
law. Sergeant Norman testified that he stopped appellant for failing to drive in a single-marked
lane. Appellant was ultimately arrested for suspicion of driving while intoxicated.
       In his sole point of error, appellant contends that the trial court erred by refusing his
request that the jury be instructed under Article 38.23 of the Code of Criminal Procedure
regarding the legality of the traffic stop. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon
2005). Appellant requested the following instruction:
       In this case, if you find from the evidence beyond a reasonable doubt that the
       police officer observed the offense of failure to maintain a single lane, you may
       consider the evidence obtained as a result of detention. If you do not so find or if
       you have a reasonable doubt, you must disregard the evidence obtained as a result
       of the detention and find the defendant not guilty.

       Article 38.23(a) provides that “[n]o 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.” Article 38.23(a) further provides that, in cases where
the evidence raises an issue, “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.”
       A defendant’s right to the submission of a jury instruction under Article 38.23(a) is
limited to disputed issues of fact that are material to a claim of a constitutional or statutory
violation that would render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509-10
(Tex. Crim. App. 2007). A defendant must meet three requirements before being entitled to the
submission of a jury instruction under Article 38.23(a): (1) the evidence heard by the jury must
raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) the
contested factual issue must be material to the lawfulness of the challenged conduct in obtaining
the evidence. Id. at 510. If there is no disputed factual issue, the legality of the conduct is
determined by the trial court alone, as a question of law. Id. And if other facts, not in dispute,
are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is

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not submitted to the jury because it is not material to the ultimate admissibility of the evidence.
Id. The disputed fact must be an essential one in deciding the lawfulness of the challenged
conduct. Id. at 511.
          Sergeant Norman testified that appellant failed to drive his truck in a single-marked lane.
See TEX. TRANSP. CODE ANN. § 545.060(a) (Vernon 1999). Appellant testified that he thought
he was not weaving and was keeping his truck “between the lines in a steady position.”
Appellant contends that his testimony disputed Sergeant Norman’s testimony that he failed to
drive his truck in a single-marked lane. Based on the conflicting testimony, appellant asserts that
the evidence raised a fact issue as to whether he failed to drive his truck in a single-marked lane
and that, therefore, he was entitled to the submission of a jury instruction under Article 38.23.
          However, Sergeant Norman also testified that appellant failed to turn on his turn signal
prior to making lane changes. Section 545.104(a) of the Transportation Code requires a driver to
signal an intention to change lanes. See TEX. TRANSP. CODE ANN. § 545.104(a) (Vernon 1999).
The purpose of signaling an intention to make a lane change is to alert other drivers to the
intended movement. Coleman v. State, 188 S.W.3d 708, 716 (Tex. App.—Tyler 2005, pet.
ref’d). Sergeant Norman testified that, when making lane changes, appellant used his turn signal
“at some point” but that he failed to comply with the law because he did not turn on his signal
prior to making the lane changes. The State introduced the video of the stop into evidence, and it
was played for the jury. The video is consistent with Sergeant Norman’s testimony. The video
shows that appellant changed lanes a number of times and that, on at least two occasions, he
crossed the lane-dividing line with part of his truck before activating his turn signal. Because
appellant did not signal his intention to change lanes before crossing the line, he violated Section
545.104(a). Therefore, Sergeant Norman had probable cause to stop him. Coleman, 188 S.W.3d
at 717.
          Appellant’s failure to signal an intention to change lanes justified the stop. No evidence
contested Sergeant Norman’s testimony on this issue. Therefore, even if appellant’s testimony
raised a fact issue as to whether he failed to drive his truck in a single lane, the evidence did not
raise a fact issue as to whether he failed to signal an intention to change lanes. Under these
circumstances, appellant was not entitled to the submission of an Article 38.23 jury instruction.
Madden, 242 S.W.3d at 510; see also Reynosa v. State, 996 S.W.2d 238, 240 (Tex. App.—
Houston [1st Dist.] 1999, no pet.) (Assuming that the defendant’s testimony raised a fact issue as

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to whether he stopped at a stop sign, the evidence did not raise a fact issue as to whether he
committed traffic violations of speeding and failing to remain in a single traffic lane; therefore,
no Article 38.23 instruction was required.).
       The trial court did not err in refusing to submit appellant’s requested jury charge.
Appellant’s point of error is overruled.
       The judgment of the trial court is affirmed.




                                                      TERRY McCALL
                                                      JUSTICE


July 15, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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