AFFIRM; and Opinion Filed January 3, 2017.




                                            Court of Appeals
                                                             S      In The


                                     Fifth District of Texas at Dallas
                                                         No. 05-16-00133-CR

                                      MANDY ROSEANNE STATTS, Appellant
                                                    V.
                                        THE STATE OF TEXAS, Appellee

                                 On Appeal from the 291st Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. F-1323660-U

                                           MEMORANDUM OPINION
                                    Before Justices Lang-Miers, Myers, and O’Neill 1
                                            Opinion by Justice Lang-Miers
           The State charged appellant, Mandy Roseanne Statts, with two offenses: possession of

methamphetamine in an amount less than one gram and tampering with evidence. A jury

convicted her of the drug charge and acquitted her of the tampering-with-evidence charge. The

trial court assessed appellant’s punishment at two years in state jail, suspended the imposition of

sentence, and placed appellant on community supervision for three years. On appeal, appellant

argues that the trial court abused its discretion by failing to give the jury an article 38.23(a)

instruction and admitting certain evidence. We affirm the trial court’s judgment.




   1
       The Hon. Michael J. O’Neill, Justice, Ret., sitting by assignment.
                                           Background

       A City of Garland police officer arrested appellant for possession of methamphetamine

after he stopped her for failing to signal a turn. The officer had been conducting surveillance of a

known drug house and was parked a distance away from the house. He saw appellant drive up to

the house, enter the house, return to her vehicle about 10 minutes later, and drive off in a

direction away from the officer. When she got to the end of the street, she made a right turn

without signaling the turn. The officer followed appellant and turned on his lights to conduct a

traffic stop. Appellant did not pull over immediately. Just before she stopped, the officer

observed the driver’s side window go down and saw appellant “make a furtive movement with

her [right] hand towards her mouth, as if she were sticking something into her mouth,” pick up a

soda can, “and was guzzling as if like she was washing something down.” The officer testified

that he suspected appellant was “probably trying to conceal some type of narcotic.”

       Appellant pulled over and the officer approached the driver’s side of the vehicle. The

officer described appellant’s demeanor as “real fidgety, her pupils were dilated, which means

they were large, which is conducive with being under the influence of – one of the things is

methamphetamine will cause that” and “sweating profusely.” He saw “crystal shards” on her

shirt that he associated with methamphetamine and asked her to get out of the vehicle. She did

not comply. He handcuffed her left wrist and pulled her out of the vehicle. He then “observed

more crystal methamphetamine shards lying on the driver’s seat.” Appellant lunged into the

vehicle and tried to brush the shards off the seat with her right hand, but the officer prevented it

and handcuffed her. Appellant told the officer that she had swallowed two bags containing

methamphetamine residue. The officer called for a female back-up officer and at some point

called an ambulance.




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          The female officer observed the shards on appellant’s shirt and in the car. She did not

find any illegal substance on appellant’s person. The video recording of the traffic stop could not

be located. The ambulance transported appellant to Baylor hospital in Garland where she was

treated and released. The paramedic noted in his report that appellant said she had swallowed

two bags containing methamphetamine residue. The paramedic noted the “Primary Impression”

from his examination of appellant was “Overdose. Ingestion.” The trial court suppressed

appellant’s statement to the police officer and to the paramedic because she was under arrest, but

the officer did not give appellant her Miranda 2 warnings before she made these statements. All

but the word “Overdose” were redacted from the paramedic’s report.

          At trial, appellant’s defense was that the officer did not have probable cause to conduct

the traffic stop because the officer was too far away to have seen whether appellant failed to

signal the turn. Appellant cross-examined the officer about his ability to see from his location.

Appellant did not offer any witness testimony. The jury returned a not-guilty verdict on the

tampering-with-evidence charge, and a guilty verdict on the possession charge.

                                                  Article 38.23(a) Instruction

          In issue one, appellant argues that the trial court abused its discretion by failing to instruct

the jury under article 38.23(a) of the Texas Code of Criminal Procedure, which states:

          (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).

   2
       Miranda v. Arizona, 384 U.S. 436 (1966).



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       We review claims of jury charge error first for error and then, if we find error, for harm.

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Appellant contends it was error

for the trial court not to instruct sua sponte the jury under article 38.23(a) concerning the traffic

stop. She contends the officer did not have probable cause to stop her for a traffic violation

because he could not have seen whether she signaled her turn from his vantage point. And she

argues that she raised an issue about the officer’s credibility so as to warrant the jury instruction.

       A trial court must give an article 38.23(a) instruction to the jury when the evidence raises

an issue of disputed fact that is material to the appellant’s claim of a constitutional or statutory

violation that would render the evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509–

10 (Tex. Crim. App. 2007). But when the evidence does not raise a disputed fact issue, the trial

court does not err by refusing to give the instruction to the jury. Id. at 510. The disputed fact

issue must be created by “affirmative evidence.” Id. at 513.

       Here, the officer testified that appellant did not signal the turn. There was no evidence

that she did signal the turn. And despite vigorous cross-examination about whether the officer

could have actually seen appellant’s vehicle from his location, the officer consistently testified

that he had a clear view of appellant’s vehicle at the intersection and he saw clearly that she did

not signal the turn. See id. at 513 (cross-examination questions do not create a factual dispute;

only answers to those questions may create a dispute). It was not enough to bring into question

the officer’s credibility; there must have been evidence that appellant signaled the turn before an

article 38.23(a) instruction was required. See id. at 514 & n.26. We conclude there was no factual

dispute about whether appellant failed to signal the turn. Consequently, the trial court was not

required to submit an article 38.23(a) instruction to the jury. We resolve issue one against

appellant.




                                                 –4–
                                                  Admission of Evidence

          In issues two and three, appellant complains about evidence admitted over her objections.

In issue two, she argues that the trial court abused its discretion by admitting State’s Exhibit 13,

a report of the responding paramedic who transported appellant to the hospital. In issue three, she

argues that the trial court abused its discretion by admitting State’s Exhibit 14, consisting of

hospital records that included a nurse’s notation that appellant said she swallowed two bags with

methamphetamine residue and had smoked methamphetamine at her home.

          We review the admission or exclusion of evidence under an abuse-of-discretion standard

and will reverse the trial court’s decision only if it was so clearly wrong as to lie outside the zone

of reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

          The State offered Exhibits 13 and 14 at the same time. Appellant objected that the

documents violated her right to confrontation and the statements contained in them were fruit of

the poisonous tree. The court held a hearing outside the presence of the jury about the

admissibility of these exhibits and agreed with appellant in part. The trial court concluded that

appellant made statements at the scene without having been given Miranda warnings and

required the State to redact all statements appellant made to the police officer and the

paramedic. 3 However, the court concluded that appellant’s statements to the hospital nurse were

admissible because those statements were not made to law enforcement and Miranda did not

apply.




     3
       Despite appellant’s argument to the contrary, our records show that “Ingestion” was redacted from Exhibit 13 and only “Overdose”
appears under “Primary Impression.”



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Paramedic’s Report

       On appeal, appellant argues that the paramedic’s report, admitted through the

paramedic’s testimony, should not have been admitted because it was hearsay, was not relevant,

was not offered through a witness with personal knowledge, and was highly prejudicial.

Appellant concedes that she did not raise these objections in the trial court. But she argues that

the trial court “must conduct a jury trial, to the extent practicable, so that inadmissible evidence

is not even suggested to the jury.” See TEX. R. EVID. 103(d).

       Our evidentiary rules also state, however, that to complain on appeal about the admission

or exclusion of evidence, a party must show that the error affected a substantial right of the party

and the party timely and specifically objected to the admission of the evidence. TEX. R. EVID.

103(a)(1). The purpose of this rule “‘is to give the trial court or the opposing party the

opportunity to correct the error or remove the basis for the objection.’” Reyna v. State, 168

S.W.3d 173, 179 (Tex. Crim. App. 2005) (quoting Martinez v. State, 22 S.W.3d 504, 507 (Tex.

Crim. App. 2000)). The party complaining on appeal must “do ‘everything necessary to bring to

the judge’s attention the evidence rule or statute in question and its precise and proper

application to the evidence in question.’” Id. (quoting Martinez v. State, 91 S.W.3d 331, 335–36

(Tex. Crim. App. 2002)).

       We conclude that appellant’s confrontation objection and objection that the evidence was

fruit of the poisonous tree did not preserve her complaints on appeal that the paramedic’s report

was inadmissible because it was hearsay, not relevant, highly prejudicial, or was offered through

a witness who lacked personal knowledge. See id. Consequently, this issue does not present

anything for us to review. We resolve issue two against appellant.




                                                –6–
Hospital Records

       On appeal appellant complains that the hospital records were not admissible because they

were speculative and contained hearsay and evidence of extraneous bad acts prohibited under

rule 404(b). Appellant did not make these objections below.

       The primary complaint about the hospital records is the nurse’s note stating: “Swallowed

two bags [with] meth residue. Smoked meth at home, 5 gm in bag originally, doesn’t know how

much was in bag when swallowed.” The State proffered the exhibit under the business records

exception to the hearsay rule. Appellant’s only objections were confrontation and fruit of the

poisonous tree.

       Appellant argues on appeal that whether a statement is an admission by a party opponent

is a preliminary question of fact for the trial court to make and that the trial court could have

sustained her objection on confrontation grounds “unless and until the predicate facts were

proved.” She argues that if the nurse had testified, “perhaps something approximating the entries

in the exhibit would have become admissible,” but because the nurse did not testify, the

statement was inadmissible hearsay.

       In the hearing outside the presence of the jury, the evidence showed that the paramedic

gave information to the nurse about appellant having swallowed two bags with

methamphetamine residue, but it also showed that the paramedic did not know about, and did not

tell the nurse, that appellant had smoked methamphetamine at home or how much

methamphetamine was in the bags originally. The court concluded that this information could

only have come from appellant. The court determined as a preliminary matter that appellant

made the statement and the evidence supports the court’s conclusion. To the extent appellant

argues that the trial court should have sustained her confrontation objection on this basis, we

disagree. We resolve issue three against appellant.

                                               –7–
                                          Conclusion

       We affirm the trial court’s judgment.




                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47

160133F.U05




                                               –8–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MANDY ROSEANNE STATTS, Appellant                   On Appeal from the 291st Judicial District
                                                   Court, Dallas County, Texas
No. 05-16-00133-CR         V.                      Trial Court Cause No. F-1323660-U.
                                                   Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee                       Justices Myers and O’Neill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 3rd day of January, 2017.




                                             –9–
