                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-13-00256-CR


HARRELL RICHMOND THORNTON                                                APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


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      FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY
                   TRIAL COURT NO. 1211078

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                          MEMORANDUM OPINION 1

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      A jury convicted Appellant Harrell Richmond Thornton of misdemeanor

driving while intoxicated (DWI), enhanced by one prior DWI conviction, and the

trial court sentenced him to 365 days’ confinement, probated for two years, and

imposed a fine of $4,000. Appellant brings two points on appeal, contending that

the trial court reversibly erred by failing to include a correctly worded article 38.23

      1
       See Tex. R. App. P. 47.4.
instruction in the jury charge and by denying his motion to suppress. Because

the trial court did not err, we affirm the trial court’s judgment.

Brief Statement of Facts

         At the hearing on the motion to suppress, Jason Morehouse testified that

he was employed as a police officer with the City of Fort Worth. At approximately

2:06 a.m. on August 25th, 2010, Officer Morehouse was in a marked patrol

vehicle, facing southbound at the intersection of Oakmont Boulevard and Bryant

Irvin.    There are two left turn lanes at this intersection. Officer Morehouse

testified that he was stopped in the right-side left turn lane, and Appellant pulled

up in the left-side left turn lane. Officer Morehouse testified that the signal lights

for the turn lanes as well as the “straight” lanes were red. He explained that he

was on his way home and on the phone with his wife as he sat at the intersection

and admitted that he tends to “relax a little bit” when he is not on duty. Officer

Morehouse further testified that drivers do not “pay attention as much to the

roads” when they are talking on cell phones.

         According to Officer Morehouse, the light for southbound traffic (the

“straight” lanes) turned green, but the left-turn signal remained red.        Officer

Morehouse testified that Appellant nevertheless turned left on the red light. The

officer activated his emergency lights and initiated a traffic stop of Appellant,

which ultimately resulted in his arrest for DWI. Officer Morehouse’s patrol vehicle

was not equipped with a video camera. The record therefore does not include a




                                           2
video recording of his contact with Appellant. Officer Morehouse’s trial testimony

was essentially the same as his testimony in the suppression hearing.

      Patty Gillespie testified that she was a diesel mechanic with the United

States Air Force. On August 25th, 2010, she and Appellant had been driving his

mother’s truck to determine why it was making a “squealing noise.” Gillespie

testified that she and Appellant had driven the truck in a parking lot for “a good

45 minutes to an hour” but could not determine what was causing the noise.

After unsuccessfully trying to determine what was causing the noise, she and

Appellant were heading to her apartment on Oakmont Boulevard. Gillespie was

in the passenger seat. She testified that they were driving south on Bryant Irvin

and pulled into the far left-hand turn lane at the Oakmont intersection. Gillespie

further testified that they were stopped at the red light for fifteen to twenty

seconds before a police car pulled up to their right.

      According to Gillespie, she told Appellant that a police car was next to

them and that she was going to try to determine what was causing the noise in

the truck by using “the side of the car for the echo[e]s to bounce off to see if we

c[ould]—front, back, rear, middle, you know.” In this manner, Gillespie explained,

she could determine if the noise was coming from the brakes or the transmission

or a “belt in the front.” To hear better, Gillespie rolled her window down and tilted

her head out of the window. She testified that she definitely saw the officer and

that she was watching the traffic light. According to Gillespie, the left-turn light

turned green, and Appellant proceeded to make a left turn. Gillespie testified that


                                         3
she travelled that street every day and was familiar with this intersection.

Gillespie testified that she was “100 percent sure that light was green.” She

testified that Officer Morehouse’s vehicle began to move a few seconds before

Appellant began his left turn. Gillespie’s trial testimony was essentially the same

as her testimony in the suppression hearing.

      At the suppression hearing, Appellant testified that on August 25th, 2010,

he and Gillespie had been trying to determine “where a clanking noise or

squealing noise was coming from underneath the truck.” Appellant had asked

Gillespie to help him determine what was wrong with the truck because she was

a mechanic with the United States Air Force. Appellant testified that they drove

the truck around in two separate parking lots but could not determine the cause

of the noise. After driving around in the second parking lot, they decided to

return to Gillespie’s apartment.      Appellant drove southbound and, at an

intersection, pulled into the far left-hand turn lane.     Appellant testified that

Gillespie informed him that a police car was on her right and that she was going

to use that car as a deflector of sound in order to isolate the squeaking noise that

the truck was making. At that time, the left turn arrow was red.          Appellant

testified that the left turn signal changed to green, and he proceeded to turn left.

Appellant “started real easy and then picked up speed so [they] could hear the

clanking.” Appellant testified that he and the officer turned at approximately the

same time. Appellant further testified that he was “100 . . . percent positive” that




                                         4
the left turn signal turned green before he made his left turn. Appellant did not

testify at trial.

Motion to Suppress

        Appellant argues in his second point that the trial court reversibly erred by

denying his motion to suppress the fruits of the warrantless stop that he argues

was not based on reasonable suspicion. We review a trial court’s ruling on a

motion to suppress evidence under a bifurcated standard of review. 2                 In

reviewing the trial court’s decision, we do not engage in our own factual review. 3

The trial judge is the sole trier of fact and judge of the credibility of the witnesses

and the weight to be given their testimony. 4 Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if the

trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn on

an evaluation of credibility and demeanor. 5

        2
        Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
        3
       Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.).
        4
       Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by
State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006).
        5
       Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09
(Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim.
App. 2002).



                                          5
      The trial court chose to believe the testimony of the officer that he had

observed a traffic violation and to disbelieve the defense witnesses denying the

traffic violation. As the trial court noted in its fifth conclusion of law, “when a

traffic law violation is committed in an officer’s presence, the officer has probable

cause to lawfully stop and arrest or detain the violator.” 6

      Appellant and his passenger testified that he entered the intersection to

make his left turn while the governing light was green. The officer testified that

the light was red. He may have been distracted; he may even have been wrong.

But the evidence before us shows merely a swearing match. The trial court was

free to believe the witness he found most credible.            The officer’s testimony

satisfied, at minimum, the standard necessary to justify the initial stop.        We

overrule Appellant’s second point.

Jury Charge

      At the charge conference, Appellant requested an article 38.23 instruction.

The trial court included the following instruction in the jury charge:

             You are instructed that under our law no evidence obtained or
      derived by an officer or other person as a result of an unlawful stop
      and detention shall be admissible in evidence against such accused.
      An officer is permitted, however, to make such a temporary
      investigative detention of a motorist if the officer has a reasonable
      suspicion that some activity out of the ordinary is or has occurred,
      that the person detained is connected with such activity, and that


      6
       Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986); Tyler v.
State, 161 S.W.3d 745, 748 (Tex. App.—Fort Worth 2005, no pet.).



                                           6
      there is some indication that the activity is related to a crime or a
      criminal offense.

            Now, bearing in mind these instructions, if you find from the
      evidence that on the occasion in question [Appellant] did not
      disregard a [the handwritten word “valid” is inserted here in the
      typewritten jury charge] signal device immediately preceding the
      stop and detention by the police officer involved herein, or you have
      a reasonable doubt thereof, then such detention of the accused
      would be illegal, and if you find the facts so to be, or if you have a
      reasonable doubt thereof, you will disregard any evidence obtained
      as a result of the temporary investigative detention, and you will not
      consider such evidence for any purpose whatsoever.

Appellant made no objection.        Indeed, Appellant specifically stated, “No

objections, Your Honor.” Appellant argues in his first point on appeal, however,

that the court’s charge

      erroneously phrased the factual dispute in terms of whether the
      Appellant disregarded a “valid signal device.” . . . The Court’s
      charge does not define “valid signal device.” This left the jury with
      no ability to determine the true disputed fact (was the light red or
      green) within the 38.23 framework. Furthermore, the trial court’s
      attempt to instruct the jury with the mandated language of 38.23 is
      confusing, at best.

      In our review of a jury charge, we first determine whether error occurred; if

error did not occur, our analysis ends. 7     If error occurred, whether it was

preserved determines the degree of harm required for reversal. 8 Unpreserved




      7
       Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
      8
       Id.



                                        7
charge error warrants reversal only when the error resulted in egregious harm. 9

The appropriate inquiry for egregious harm is a fact-specific one that must be

performed on a case-by-case basis. 10

      In making an egregious harm determination, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument of

counsel and any other relevant information revealed by the record of the trial as a

whole.” 11 Errors that result in egregious harm are those “that affect the very

basis of the case, deprive the defendant of a valuable right, vitally affect the

defensive theory, or make a case for conviction clearly and significantly more

persuasive.” 12 The purpose of this review is to illuminate the actual, not just

theoretical, harm to the accused. 13

      A person who enters an intersection when the light governing his entering

the intersection is red disregards a valid signal device. The trial court, under the

      9
       Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code
Crim. Proc. Ann. art. 36.19 (West 2006).
      10
        Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v.
State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
      11
       Almanza, 686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at 708–
10 (applying Almanza).
      12
          Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172).
      13
          Almanza, 686 S.W.2d at 174.



                                         8
facts of this case, did not commit error in providing the jury instruction now

complained of.      Even if we were to assume that the charge was erroneous,

though, such error would not be egregious. The jury charge called to the jury’s

attention the disputed evidence about the signal light and instructed the jury that

Appellant committed a traffic violation only if the jury found that he had entered

the intersection against the light. The jury was instructed to consider the fruits of

the stop only if the stop was lawful and pursuant to a traffic violation.        We

therefore overrule Appellant’s first point.

Conclusion

      Having overruled Appellant’s two points on appeal, we affirm the trial

court’s judgment.



                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 15, 2015




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