                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-16-00060-CR
                             ____________________

                   GERALD ALLEN GRAHAM, Appellant

                                        V.

                   THE STATE OF TEXAS, Appellee
__________________________________________________________________

             On Appeal from the County Court at Law No. 5
                      Montgomery County, Texas
                      Trial Cause No. 14-302572
__________________________________________________________________

                         MEMORANDUM OPINION

      Appellant Gerald Allen Graham appeals his conviction for criminal

mischief. In his sole issue on appeal, Graham complains the trial court erred by

denying his request to provide 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 2005). Graham argues that because there is an issue of fact concerning

whether he was driving recklessly, the trial court should have included an article

38.23 instruction informing the jury that it must disregard the evidence concerning

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criminal mischief if it has a reasonable doubt that Graham was driving recklessly.

We overrule Graham’s sole issue and affirm the trial court’s judgment.

                                    Background

      On April 12, 2013, Texas Ranger Wesley Dolittle was driving to work when

he observed a vehicle being driven in a reckless manner. Dolittle testified that he

felt obligated to stop the vehicle so that it would not cause an accident. During the

stop, Graham told Dolittle that he was on the way to the hospital, and he gave

Dolittle the name of the person he was going to see. When Dolittle checked to see

if there had been any accidents, he learned that no person by that name had gone

by ambulance to the emergency room. At that point, Dolittle observed Graham’s

behavior, and he explained that Graham appeared to be yelling something at him

and was pacing back and forth. Dolittle felt that Graham might flee, so he re-

approached and placed Graham under arrest for reckless driving. Dolittle

handcuffed Graham, placed him in the front passenger seat of his truck, and went

to speak with Graham’s passenger, Karen Graham.

      While speaking with Karen, Dolittle observed that Graham was fidgeting in

the truck. Dolittle checked on Graham and noticed that Graham had turned his

wrists in the handcuffs, so Dolittle re-secured the handcuffs. Dolittle also turned on

a pocket audio recorder to document his contact with Graham because Graham was

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angry and yelling at him. Dolittle went back to speak with Karen, and upon

returning to his truck, Dolittle observed that his department issued radio had been

dislodged from the dashboard and was in the floorboard hanging from the wires. In

addition to the reckless driving charge, Dolittle charged Graham with felony

criminal mischief.

      Graham entered a plea of guilty to the reckless driving charge, but proceeded

to trial on a misdemeanor criminal mischief charge. During the trial, Karen

testified that she was Graham’s wife and she was with Graham when Dolittle

pulled him over and arrested him for speeding. According to Karen, they were on

their way to the hospital and Graham was speeding, but she did not recall Graham

making any quick lane changes or nearly sideswiping a car. Karen testified that a

vehicle had cut in front of them, causing Graham to slow down, but Graham did

not have to slam on the brakes. Karen testified that Dolittle approached their

vehicle and Graham calmly handed Dolittle his driver’s license and information.

According to Karen, when Dolittle returned, he told Graham to get out of the car

because he was under arrest. Karen stated that Dolittle was very aggressive

towards Graham, and after being arrested, Graham became very angry.

      During the jury charge conference, Graham’s counsel requested that the trial

court include an article 38.23 instruction on reckless driving in the jury charge,

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because Karen’s testimony brought up some evidence that Graham was not driving

recklessly. Graham’s counsel argued that because the State had failed to properly

rebut Karen’s testimony, the State could not bring up the reckless driving

conviction because it was not in evidence. The trial court denied Graham’s article

38.23 request, noting that Graham had pleaded guilty to reckless driving. The jury

found Graham guilty of criminal mischief and sentenced Graham to 180 days in

jail and assessed a $2000 fine. Graham appealed.

                                     Analysis

      Graham argues that the trial court erred by denying his request to provide an

article 38.23 instruction because Karen’s testimony created a fact issue as to

whether there was probable cause to arrest Graham for reckless driving. The State

argues that article 38.23 does not apply because Graham committed the offense of

criminal mischief after he was stopped and arrested for reckless driving. In

reviewing jury charge error, we must undertake a two-step review: first, we must

determine whether error actually exists in the charge; and second, if error exists,

we must determine whether sufficient harm resulted from the error to require

reversal. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994).

      We note that the phrase “obtained in violation of the law,” as used in Article

38.23, “contemplates that a crime has been committed; that evidence of that crime

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exists; and that officers violated the law in attempting to obtain evidence of the

previously committed crime.” State v. Iduarte, 268 S.W.3d 544, 550 (Tex. Crim.

App. 2008) (quoting State v. Mayorga, 901 S.W.2d 943, 945-46 (Tex. Crim. App.

1995)). To trigger the application of article 38.23, “the officers must act illegally in

obtaining existing evidence of an offense.” Id. Several Texas courts have held that

the exclusionary rule is not applicable when a police officer’s alleged violation of

the law precedes the commission of an offense by the defendant. See id. at 551

(exclusionary rule held inapplicable when officer’s alleged illegal entry preceded

offense of assault on a public servant); Bryant v. State, 253 S.W.3d 810, 812-13

(Tex. App.—Amarillo 2008, pet. ref’d) (exclusionary rule held inapplicable when

alleged illegal detention preceded offense of tampering with physical evidence);

Donoho v. State, 39 S.W.3d 324, 327 (Tex. App.—Fort Worth 2001, pet. ref’d)

(exclusionary rule held inapplicable when alleged illegal arrest preceded offense of

assault on a public servant). Here, because Dolittle’s alleged violation of the law

occurred prior to Graham committing the offense of criminal mischief, the article

38.23 exclusionary rule did not apply.

      We conclude that the trial court did not err by denying Graham’s request for

a jury charge instruction under Article 38.23(a). We overrule Graham’s sole issue

and affirm the trial court’s judgment.

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      AFFIRMED.



                                           ______________________________
                                                  STEVE McKEITHEN
                                                      Chief Justice

Submitted on November 21, 2016
Opinion Delivered December 14, 2016
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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