Opinion issued September 1, 2015




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00076-CR
                           ———————————
                   KATELYNN ROSE GARZA, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


               On Appeal from the County Court at Law No. 4
                          Brazoria County, Texas
                       Trial Court Case No. 198893


                                 OPINION

      Appellant Katelynn Garza was charged with misdemeanor possession of

marijuana. See TEX. HEALTH & SAFETY CODE § 481.121(b)(1). A jury found her

guilty and imposed a $500 fine as punishment.
      In this appeal, Appellant argued that the trial court erred when it denied her

request for a jury instruction regarding illegally obtained evidence. See TEX. CODE

CRIM. PROC. art. 38.23(a). In an opinion dated April 16, 2015, we concluded that

the evidence did not demonstrate any material fact dispute implicating the legality

of the traffic stop that led to the discovery of marijuana in Appellant’s car, and we

affirmed the trial court’s judgment.

      Appellant filed a motion for en banc reconsideration. We withdraw our

opinion and judgment issued April 16, 2015, and we issue this opinion and

judgment in their stead. Our disposition remains unchanged, but under this court’s

precedent, Appellant’s motion for en banc reconsideration is rendered moot by our

withdrawing and reissuing our opinion. See, e.g., Brookshire Bros. v. Smith, 176

S.W.3d 30, 14 n.4 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on

reh’g).

      We affirm.

                                   Background

      Around midnight on December 18, 2012, Pearland Police Officer N. Palomo

pulled over a car because he observed that its passenger-side headlamp was not

functioning properly. Appellant was driving the car. Palomo walked up to the car,

and Appellant stated, “headlights.” Palomo said, “yes,” to which she replied, “I just




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got stopped for that in Friendswood.” As Palomo spoke with Appellant about the

car’s headlamp, he smelled the odor of marijuana coming from the car.

      Palomo asked Appellant to exit the car, which she did. She admitted that she

had been smoking marijuana earlier that evening. A search of the vehicle

uncovered several marijuana cigarettes, which Appellant admitted were hers.

Palomo arrested her for possession of marijuana.

      The State charged Appellant with the misdemeanor offense of possession of

marijuana. At the end of trial, Appellant proffered for inclusion in the jury charge

an article 38.23 instruction to the effect that evidence should not be considered if it

resulted from an illegal traffic stop. Specifically, her counsel questioned whether

there was reasonable suspicion to justify the traffic stop, explaining at the charge

conference that a fact issue existed about “what condition [her] vehicle was in . . .

specifically, the headlamps and the amount of light that they were emitting . . . .”

      The court denied the requested charge, and the jury found Appellant guilty.

This appeal followed.

                                      Analysis

      In a single issue, Appellant contends that the trial court erred when it denied

her request for a jury instruction regarding illegally obtained evidence. She argues

that the instruction was warranted by a factual dispute concerning her passenger-

side headlamp: whether it was working and the amount of light it produced. We



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review a challenge to a jury charge using a two-step process. See Sakil v. State, 287

S.W.3d 23, 25–26 (Tex. Crim. App. 2009). First, we must determine whether the

jury charge contained an error. Id. at 25. If it did, we then evaluate whether the

error was harmful so as to constitute reversible error. Id. at 25–26.

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

officer must have ‘reasonable suspicion.’” E.g., Hamal v. State, 390 S.W.3d 302,

306 (Tex. Crim. App. 2012). An officer has reasonable suspicion when he is aware

of “specific articulable facts that, when combined with rational inferences from

those facts, would lead him to 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 wholly objective; the subjective intent of the officer conducting the

investigation is irrelevant.” Id. “The standard requires only ‘some minimal level of

objective justification” for the stop.’” Id. (quoting Foster v. State, 326 S.W.3d 609,

614 (Tex. Crim. App. 2010)). “Whether the facts known to the officer amount to

reasonable suspicion is a mixed question of law and fact subject to de novo

review.” Id. (citing State v. Mendoza, 365 S.W.3d 666, 669–70 (Tex. Crim. App.

2012)). “A police officer’s reasonable mistake about the facts may yet legitimately

justify his own conclusions that there is probable cause to arrest or reasonable




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suspicion to detain.” Robinson v. State, 377 S.W.3d 712, 720 (Tex. Crim. App.

2012).

      The traffic stop in this appeal occurred at nighttime, when the use of motor-

vehicle headlights was required. See TEX. TRANSP. CODE § 547.302(a). A motor

vehicle must be equipped “with at least two headlamps,” and “[a]t least one

headlamp shall be mounted on each side of the front of the vehicle.” Id.

§ 547.321(a) & (b). A motor-vehicle headlight must produce “an uppermost

distribution of light or composite beam that is aimed and emits light sufficient to

reveal a person or vehicle at a safe distance of at least 450 feet ahead during all

conditions of loading.” Id. § 547.333(b)(1).1 The headlight shall produce “a

lowermost distribution of light or composite beam that” must be aimed and emit

light “sufficient to reveal a person or vehicle at a distance of at least 150 feet

ahead.” Id. § 547.333(b)(1)(A). Generally speaking, a car’s headlights at night




1
      Appellant asserts that a lamp identified by section 547.321(a) includes “a
      combination of” her headlamps, such that one dimly lit headlamp and one
      brightly lit headlamp together could produce the statutorily required light
      sufficient to reveal a person or vehicle at a distance of at least 450 feet. The
      State interprets the Code to require each headlamp to produce independently
      the statutorily required amount of light. As a result, the State contends that
      any headlamp emitting less than the required “uppermost distribution of
      light” violates the Code. Our disposition of this appeal does not depend upon
      resolving this interpretive dispute. See TEX. R. APP. P. 47.1.



                                          5
must emit light “sufficient to reveal a person or vehicle at a safe distance ahead of

the vehicle.” Id. § 547.333(c).

      Article 38.23 of the Code of Criminal Procedure provides that evidence

obtained in violation of the Constitution or laws of Texas or the United States shall

not be admitted in evidence against the accused in a criminal case. TEX. CODE

CRIM. PROC. art. 38.23(a). In any case in which “the legal evidence” raises such an

issue, “the jury shall be instructed that if it believes, or has a reasonable doubt” that

the evidence was illegally obtained, “then and in such event, the jury shall

disregard any such evidence so obtained.” Id. A defendant must meet three

requirements before she is entitled to a jury instruction under article 38.23(a):

(1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on

that fact must be affirmatively contested; and (3) the contested factual issue must

be material to the lawfulness of the challenged conduct in obtaining the evidence.

Hamal, 390 S.W.3d at 306. If other undisputed facts are sufficient to establish 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.

Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007); Rocha v. State,

No. 01-13-00897-CR, 2015 WL 1122279, at *5 (Tex. App.—Houston [1st Dist.]

Mar. 12, 2015, pet. ref’d).




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      “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.”

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

application of the law to those facts.” Id. To raise a disputed fact necessary for an

article 38.23(a) instruction, there must be some affirmative evidence that puts the

existence of that fact into question. Id. at 513. Nevertheless, a fact issue about

whether evidence was legally obtained may be raised “from any source, and the

evidence may be strong, weak, contradicted, unimpeached, or unbelievable.”

Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting Wilkerson v.

State, 933 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d.)).

      At trial, the reason Palomo gave for pulling Appellant over was that her

passenger-side headlamp “was not operating.” Palomo explained the difference

between a headlight and a parking light:

      There’s a set of parking lights, when you . . . either click your lights
      over once—or however your vehicle is set up—turns on the parking
      lights or just turns on the taillights and the two amber lights on the
      outside corners of the vehicle without turning on the actual headlights
      themselves, the white lights that illuminate in front. Secondly is the
      actual headlight where . . . you . . . turn the dial over one more click
      and it actually illuminates the headlights which produces the white
      lights for you to be able to visually see everything at nighttime in
      front of your vehicle as you would need to.

He explained why he perceived one of the headlights to be malfunctioning:

      I could see that the light—the actual headlight itself was not
      illuminated; so it was not actually shining out the white light that is


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      necessary for the driver to be able to see everything 90 degrees from
      the rearview mirror to the right side of the vehicle . . . or passenger’s
      side of the vehicle, correctly. I could see that the parking light was
      working; it was emitting an orange light going around where the
      headlight should be but was obviously not . . . the white headlight as it
      should be.

      The testimony was illustrated through the use of video recorded by Palomo’s

car and three still images captured from the video. While viewing the first still

image, admitted as State’s Exhibit 1, Palomo compared the depiction of another

car to Appellant’s car. He showed how the other car’s two headlights produced

“distinct lighting” that could be seen “on the ground . . . coming from the front of

each headlight as that vehicle travels.” While viewing the second image, admitted

as State’s Exhibit 2, he explained what he perceived on the night of the arrest:

      You’ll notice that the driver’s side light is illuminated, and there is a
      white aura that’s striking the [pavement] directly in front of the
      driver’s side light. The passenger one is notably dimmer, and there is
      no aura striking directly in front of where this light is. The reason for
      this is because this one has the headlight that is illuminated and is
      actually shining out onto the roadway. This one’s a parking light
      that’s shining through the housing of the headlight.

Palomo also showed how the same effect could be observed in the video after he

had turned his car around to follow Appellant’s. A still image captured from the

portion of the video where Palomo followed Appellant’s car from behind was

admitted as State’s Exhibit 3. While viewing this evidence, Palomo explained:

      As you can see on the left side of the vehicle, or the driver’s side of
      the vehicle, there’s a white light that extends all the way out and also
      shines all the way up into this area here. Now, that white light is very


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      visible . . . from our perception of where we’re sitting at now. On the
      passenger’s side of the vehicle, there’s no white light; there’s a slight
      lighting right here on the side from where the parking light is
      illuminated at, but obviously absent of the white light that the driver’s
      side would be producing.

When asked why the lack of white light was problematic, Palomo responded:

      Because the headlight on the right side of the vehicle, the passenger’s
      side of the vehicle not being illuminated, as you can see how dark all
      this is, that is going to limit any driver’s perception, reaction time to
      be able to see and react to any kind of road hazard or danger that
      would be presented on this side of the roadway.

Palomo testified that he conducted a traffic stop based on his perception of an

absence of light on the passenger side of Appellant’s car. He further explained the

traffic stop by stating that “it’s necessary for a vehicle to have two headlights to

maintain safe driving standards on the roadway at nighttime,” “it’s a violation not

to have the two headlamps,” and that he initiated the stop “to notify the driver of it

because many drivers do not check their own headlights and taillights and all that

and let them know of the violation.” When he approached Appellant after pulling

her over, she acknowledged, “headlights.” He said, “yes,” to which she replied, “I

just got stopped for that in Friendswood.”

      Appellant presented evidence, through her father’s testimony, disputing

Palomo’s testimony that the passenger-side headlamp was “not operating.” After

he viewed State’s Exhibit 1, the first of the still images from the patrol car video,

Mr. Garza testified without objection that “they look like they’re both working”



                                          9
because “they’re both shining and illuminating. You can see the lights there and

there on the street.” He further testified that he maintained the car and that, since

the arrest, he had not changed the passenger-side headlamp because it “hasn’t been

out.”

        After viewing the video on cross-examination, Mr. Garza claimed he saw

one working headlamp and “a little bit of light” from the passenger-side headlamp.

When asked on cross-examination if he saw “two operable headlamps,” he

answered, “I just see one.” 2 But he later reasserted: “To me, in looking at that

picture, the light is not out.”

        The defense also offered into evidence a photograph taken by Mr. Garza

days before trial, depicting the car with its lights on but the passenger-side

headlamp disconnected. The evidence was offered in an attempt to demonstrate

that had the entire passenger-side headlamp been out as Palomo testified, the car

would have produced far less light than was depicted in the State’s exhibits.

Mr. Garza further testified that he had tested the lights and verified that he could


2
        The State contends that there is “no dispute” that the passenger-side
        headlamp was “not functioning” at the time of Garza’s arrest, because
        Mr. Garza testified on cross-examination that he saw only one “operable”
        headlamp. To the extent that this testimony suggested that the headlamp was
        producing no light at all, however, it merely contradicts Mr. Garza’s
        previous testimony and other defense evidence. See Garza v. State, 126
        S.W.3d 79, 85 (Tex. Crim. App. 2004).



                                         10
see “both lights on” from 1,000 feet away, and that at the time of the test, the car

was in the same condition as on the night of the arrest.

      The legal justifications for the traffic stop depend on whether Palomo had

reasonable suspicion that Appellant had a faulty headlight in violation of the

Transportation Code. Reasonable suspicion existed in this case to the extent that

Palomo was aware of specific articulable facts that, when combined with rational

inferences from those facts, would lead him to reasonably suspect that Appellant’s

headlights failed to emit light sufficient to reveal a person or vehicle at a safe

distance ahead. See Hamal, 390 S.W.3d at 306; see also TEX. TRANSP. CODE

§ 547.333(c).

      Appellant contends that a fact issue was raised as to reasonable suspicion to

justify the traffic stop because Mr. Garza testified that “he believed both headlights

were functioning normally.” The record does not support that characterization of

his testimony. Mr. Garza testified that it appeared to him from the still image of the

patrol car video that the headlights were “both working.” But that was not

sufficient to affirmatively controvert Palomo’s detailed testimony about a distinct

difference in the quality of light emanating from each headlight. As he perceived

the vehicle coming toward him, Palomo testified that the right headlight “was not

actually shining out the white light that is necessary for the driver to be able to see

everything 90 degrees from the rearview mirror to the right side of the vehicle . . .



                                          11
or passenger’s side of the vehicle, correctly.” Instead, “it was emitting an orange

light going around where the headlight should be but was obviously not the white

headlight as it should be.” Palomo explained how the video showed the driver’s

side headlight was illuminated, with “a white aura that’s striking the [pavement]

directly in front of the driver’s side light.” In contrast, the passenger side headlight

was “notably dimmer,” with “no aura striking directly in front” of the car on the

street. When Palomo turned his car around to follow Appellant’s, he perceived an

absence of light on the passenger side of Appellant’s car. Immediately upon being

pulled over, Appellant acknowledged an issue with her headlights, stating that she

“just got stopped for that in Friendswood.”

      Even to the extent Appellant has demonstrated an issue of material fact as to

whether the headlight was “working” to some degree, she presented no evidence

that the headlight was “functioning normally.” Nor did she present any other

evidence to create a fact issue as to whether Palomo was either lying or

unreasonably mistaken in his perception that the headlight on the passenger side

was “notably dimmer,” to the degree that a reasonable police officer would believe

that Appellant might have committed a traffic violation because her headlights

failed to emit light sufficient to reveal a person or vehicle at a safe distance ahead.

See Robinson, 377 S.W.3d at 720–21 (explaining that an article 38.23(a)

instruction is appropriate when “there is a dispute about whether a police officer



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was genuinely mistaken, or was not telling the truth”); Francis v. State, 425

S.W.3d 554, 559 (Tex. App.—Fort Worth 2014, no pet.) (“‘At a safe distance’

requires evidence of the existing conditions, including darkness, atmospheric

conditions, traffic, and roadside hazards.”).

      Because appellant did not raise any material fact issue, she was not entitled

to an article 38.23 jury instruction. Hamal, 390 S.W.3d at 306. Accordingly, the

trial court did not err in denying her request for the jury instruction.

                                      Conclusion

      The evidence did not raise an affirmatively contested material issue of fact

concerning the legality of the traffic stop that led to the discovery of marijuana in

appellant’s car. As such, she was not entitled to an article 38.23 jury instruction.

Accordingly, we affirm the trial court’s judgment.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).




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