                             NUMBER 13-11-00451-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

EDUVIGES MARGARITA ZAVALA,                                                    Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


               On appeal from the County Court at Law No. 1
                        of Brazos County, Texas.


                        MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Benavides
       Appellant Eduviges Margarita Zavala appeals her jury conviction for driving while

intoxicated, a Class B misdemeanor.     See TEX. PENAL CODE ANN. § 49.04 (West 2011).

The trial court sentenced Zavala to 180 days’ confinement at the Brazos County Jail and

fined $2,000.00.   By one issue, Zavala asserts that the trial court erred in denying her

request to include a jury instruction under article 38.23 of the code of criminal procedure.
See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005). Because we conclude that

the evidence did not raise an issue of fact to warrant an article 38.23 instruction, we

affirm.1

                                       I.      BACKGROUND2

        On or about March 9, 2008, Zavala drove her former boyfriend James Yeppez

home after a night out at Tonix, a club in Brazos County, Texas. Zavala testified that

she arrived at Tonix with her niece that night, but left with Yeppez after offering to drive

him home.3

        The following testimony was presented at trial:

A.      State’s Witness

        Texas Department of Public Safety Trooper Tommy Lyons testified that he

conducted an unrelated traffic stop on the right shoulder of Farm to Market Road 2818 in

the early morning hours of March 9, 2008 when a blue Ford F-150 sped past his patrol

unit, failing to slow down or switch to the left lane.              See TEX. TRANSP. CODE ANN. §

545.157(a) (West 2011) (specifying action to be taken by a driver when approaching an

emergency vehicle on the roadway). Trooper Lyons stated that after he finished with

the driver of the unrelated traffic stop, he pursued the F-150 and observed it:                  (1) cross

into the improved shoulder on the right side of FM 2818; (2) fail to stop at a designated

stop point in the road; and (3) cross into the improved shoulder again after the stop at the

        1
          This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
        2
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for
it. See TEX. R. APP. 47.4.
        3
          According to Zavala, she offered to drive Yeppez’s truck because he was drunk, stumbled
around, and told Zavala that he was going to drive himself.

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intersection. Trooper Lyons then testified that he activated his overhead emergency

lights to pull the vehicle over, and he later determined it to be driven by Zavala, with

Yeppez as a passenger.

       When the prosecutor asked Trooper Lyons why he had reasonable suspicion to

make the stop, he stated three reasons:     (1) “passing a stationary emergency vehicle

without slowing”; (2) “going onto improved shoulder where prohibited; and (3) “[failing] to

stop at the designated point.”

       During the stop, Trooper Lyons performed a series of field sobriety tests on

Zavala, concluded that she was intoxicated. He placed her under arrest. Trooper Lyons

also testified that he placed Yeppez under arrest for public intoxication after observing

him to be “highly intoxicated” and “highly belligerent.”   See TEX. PENAL CODE ANN. §

49.02 (West 2011).

   B. Defense’s Witness

       Zavala testified in her own defense and denied having knowledge that Trooper

Lyons’s unit was on the side of FM 2818 when she passed it because his emergency

lights were not activated.   Zavala agreed that her vehicle crossed the shoulder line “a

couple of times” and attributed it to Yeppez’s physical advances toward her as she

attempted to steer his pickup.

       A Brazos County jury convicted Zavala of driving while intoxicated, and the trial

court assessed punishment at 180 days imprisonment and a $2,000.00 fine.           Zavala

appealed.




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                             II.     ARTICLE 38.23 INSTRUCTION

          In her sole issue, Zavala contends that the trial court erred for not including an

instruction in the jury charge pursuant to article 38.23.       See TEX. CODE CRIM. PROC.

ANN. art. 38.23.

      A. Applicable Law and Standard of Review

          In part, article 38.23 states that:

          In any case where the legal 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.

Id.    A defendant is entitled to this mandatory instruction if:   (1) the evidence heard by

the jury raises an issue of fact; (2) the evidence on that fact is affirmatively contested;

and (3) that contested factual issue must be material to the lawfulness of the challenged

conduct in obtaining the evidence.          See Madden v. State, 242 S.W.3d 504, 509–10

(Tex. Crim. App. 2007).

          Finally, our first duty in analyzing jury-charge issues is to determine whether error

exists.     Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc).            If we

find error in our review, we then analyze that error for harm.     Id.

      B. Discussion

          Here, Zavala argues that a factual dispute existed for the reasonableness of her

stop by Trooper Lyons to require an article 38.23 instruction.           See Terry v. Ohio, 392

U.S. 1, 21–22 (1968); Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (en

banc) (recognizing Terry-stops in Texas).        Specifically, Zavala asserts that conflicting

testimony was elicited as to whether Zavala recognized Trooper Lyons’s patrol unit as an

emergency vehicle to require compliance under section 545.157(a).             See TEX. TRANSP.

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CODE ANN. § 545.157(a). We agree with Zavala and the trial court that a factual dispute

exists regarding whether Zavala knew that Trooper Lyons’s unit was an emergency

vehicle.

       However, the State argues that the purported violation of section 545.157(a) was

only one of three reasons given by Trooper Lyons to justify the reasonableness of the

stop. The record shows that the State and Zavala both agree that she crossed twice

into the improved shoulder, where prohibited, which violated the transportation code.

See id. § 545.058 (West 2011).         This undisputed traffic violation defeats the first

requirement to warrant an article 38.23 jury instruction.     See Madden, 242 S.W.3d at

510–11 (holding that “if other facts, not in dispute, 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.”).    Furthermore,

the “disputed fact must be an essential one in deciding the lawfulness of the challenged

conduct.”   Id.

       We are not persuaded by Zavala’s argument that Trooper Lyons would not have

observed the improved-shoulder violations but for the first purported traffic violation

under 545.157(a).     See id.   Here, the disputed fact is not essential in deciding the

lawfulness of the stop, since it is well-settled that “a traffic violation committed in an

officer’s presence authorizes an initial stop.”   Armitage v. State, 637 S.W.2d 936, 939

(Tex. Crim. App. 1982); see Espericueta v. State, 838 S.W.2d 880, 882 (Tex.

App.—Corpus Christi 1992, no pet.). In this case, Trooper Lyons observed Zavala’s

violation of section 545.058.    Accordingly, we hold that the trial court did not err in




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denying Zavala’s request for an article 38.23 instruction.    See Madden, 242 S.W.3d at

510–11; Ngo v. State, 175 S.W.3d at 743.       Her sole issue is overruled.

                                  III.   CONCLUSION

       We affirm the trial court’s judgment.




                                                         __________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


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

Delivered and filed the
19th day of July, 2012.




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