                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                 NO. 2-09-100-CR


BROOKS EDW ARD PAYNE                                                   APPELLANT

                                            V.

THE STATE OF TEXAS                                                           STATE

                                        ------------

                  FROM COUNTY COURT OF ARCHER COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

                                  I. INTRODUCTION

      Appellant Brooks Edward Payne appeals his conviction for driving while

intoxicated (“DW I”). In seven issues, Payne challenges the trial court’s rulings

denying his motion to dismiss, his motion to suppress, his motion for a mistrial, and

his requested jury charge instructions and admitting evidence about a preliminary

breath test. W e will affirm.




      1
           See Tex. R. App. P. 47.4.
                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

       On December 31, 2007, at around 10:00 p.m., Trooper Corey Lain observed

a vehicle traveling at what he thought was a speed greater than the posted speed

limit of fifty-five miles per hour. He activated his radar and clocked the vehicle

traveling at sixty-eight miles per hour and, after catching up to the vehicle, at

seventy-one miles per hour. W hen Trooper Lain activated his patrol unit’s overhead

lights, the vehicle slowed down, turned on its turn signal, and began to pull over, but

it returned to the road and traveled a little farther before ultimately stopping.

       Trooper Lain approached the vehicle and explained to the driver, Payne, that

he had been stopped for a speeding violation. Trooper Lain detected an odor of

alcohol emanating from the interior of the vehicle and observed that Payne’s eyes

were red and bloodshot. He escorted Payne to the rear of the vehicle and confirmed

that the odor of alcohol was coming from Payne’s breath. Trooper Lain asked about

the odor, and Payne said that he had consumed one beer about an hour and a half

earlier.

       Trooper Lain had Payne perform the Horizontal Gaze Nystagmus (“HGN”)

test; he observed six out of six clues indicating intoxication. Payne also blew into a

“Preliminary Breath Test” (“PBT”), which, according to Trooper Lain, indicated the

presence of alcohol, and Payne performed the “reverse counting test,” during which

he paused lengthily several times to recall the numbers. Payne refused to perform

the walk-and-turn test and the one-leg-stand test, claiming that he had broken one


                                           2
of his toes when he was younger and had a problem with his knee. Considering

Payne’s driving behavior, the odor of alcohol on his breath, his admission of drinking

beer, his bloodshot eyes, the clues indicated on the sobriety tests he performed, and

the result of the PBT, Trooper Lain opined that Payne was operating a motor vehicle

while intoxicated and arrested him. 2

      At trial, two of Payne’s acquaintances testified that Payne was not intoxicated

when he left a party at around 9:00 p.m. on the night of his arrest. And Payne

testified that he had two beers before being stopped by Trooper Lain and that he

was not intoxicated that night.

      Payne filed a motion to dismiss his case on the ground that the State had

failed to preserve a DVD containing the video recording of Payne’s stop and arrest,

which the trial court denied. The trial court also denied Payne’s motion to suppress

evidence, motion in limine regarding evidence of the PBT, motion for a mistrial

based on a violation of a motion in limine and code of criminal procedure article

37.07, and requested jury instructions in regard to unpreserved evidence and code

of criminal procedure article 38.23.

      A jury convicted Payne of DW I, and the trial court sentenced him to 180 days’

confinement, suspended imposition of the sentence, placed him on community

supervision for eighteen months, and imposed a $1,000 fine. This appeal followed.



      2
           Payne refused to give a breath specimen at the Archer County Sheriff’s
Office.

                                          3
                        III. F AILURE TO P RESERVE E VIDENCE

      In his first and second issues, Payne argues that the trial court abused its

discretion by denying his motion to dismiss because the State’s failure to preserve

and make available a DVD video recording made of his traffic stop ran afoul of the

Fifth and Fourteenth Amendments to the United States Constitution and article 1,

sections 10 and 19 of the Texas constitution. In his seventh issue, Payne argues

that the trial court abused its discretion by giving the jury an improper spoliation

instruction concerning the defective DVD. In regard to his arguments based on the

Texas constitution, Payne argues that this court should implement the legal standard

adopted by the W aco Court of Appeals in Pena v. State, 226 S.W .3d 634, 651–53

(Tex. App.—W aco 2007) (“Pena III”), rev’d on other grounds by 285 S.W .3d 459

(Tex. Crim. App. 2009), and used by that same court in Freeman v. State, 276

S.W .3d 630, 634–37 (Tex. App.—W aco 2008), vacated, 286 S.W.3d 370 (Tex. Crim.

App. 2009), and hold that the Texas Due Course of Law provision provides a greater

level of protection than the federal Due Process Clause as it concerns the State’s

failure to preserve potentially useful evidence in a criminal prosecution.

      A.     Motion to Dismiss

      W e review the trial court’s denial of a motion to dismiss a charging instrument

for an abuse of discretion. Rogers v. State, 113 S.W .3d 452, 459 (Tex. App.—San

Antonio 2003, no pet.); Burgett v. State, No. 02-05-00377, 2006 W L 3525434, at *5

(Tex. App.—Fort W orth Dec. 7, 2006, pet. ref’d) (mem. op., not designated for


                                          4
publication); see Thomas v. State, 621 S.W .2d 158, 163 (Tex. Crim. App. [Panel

Op.] 1980). A trial court abuses its discretion when its decision is so clearly wrong

as to lie outside the zone within which reasonable persons might disagree. Howell

v. State, 175 S.W .3d 786, 790 (Tex. Crim. App. 2005).

                1.     Due Process

          In cases involving the State’s failure to preserve evidence in a criminal trial,

the United States Supreme Court has drawn a distinction between “material

exculpatory evidence” and “potentially useful evidence.” See Arizona v. Youngblood,

488 U.S. 51, 57–58, 109 S. Ct. 333, 337 (1988). A federal due process violation

occurs whenever the State suppresses or fails to disclose material exculpatory

evidence, regardless of whether the State acted in bad faith. Illinois v. Fisher, 540

U.S. 544, 547–48, 124 S. Ct. 1200, 1202 (2004). However, if a defendant seeks to

prove a federal due process violation based on the State’s loss or destruction of

potentially useful evidence, the defendant must show that the State acted in bad

faith in destroying the evidence. Id.; Youngblood, 488 U.S. at 57–58, 109 S. Ct. at

337; see Jackson v. State, 50 S.W .3d 579, 589 (Tex. App.—Fort W orth 2001, pets.

ref’d).

          Here, the record demonstrates that a recording device in Trooper Lain’s patrol

unit made a DVD recording of Payne’s stop; that, pursuant to the Texas Department

of Public Safety’s procedure, the DVD was turned over to Trooper Lain’s supervisor

in W ichita Falls and stored for ninety days before being destroyed; that someone


                                              5
made a copy for the State of the part of the original DVD showing Payne’s stop; that

the copy was defective because it did not play back properly; and that Trooper Lain

could not thereafter locate the original DVD containing the footage of Payne’s stop.

      Payne argues that the DVD showing his stop is “inherently exculpatory”

because it “would have shown what happened during the stop and arrest.” The

essence of Payne’s argument, however, only amounts to an assertion that the DVD

might have exonerated him. The DVD therefore falls into the category of “potentially

useful evidence,” and Payne must show that the State acted in bad faith. See

Youngblood, 488 U.S. at 57–58, 109 S. Ct. at 337; Ramirez v. State, 301 S.W .3d

410, 420 (Tex. App.—Austin 2009, no pet.). Payne does not argue that the State’s

failure to preserve the DVD recording of his stop was the result of bad faith, nor is

there any evidence thereof in the record. Accordingly, the trial court did not abuse

its discretion by denying Payne’s motion to dismiss on federal due process grounds. 3

W e overrule Payne’s first issue.

             2.    Due Course of Law




      3
          Payne also argues that he was denied his Fifth Amendment right “not to
testify” because the State’s failure to preserve the DVD “left him with no choice but
to testify since no one else was present during the stop and arrest other than
Trooper Lain.” Payne did not argue this basis for dismissal in his motion to dismiss
or at the hearing on his motion to dismiss. Further, in his brief, Payne included
citations to relevant authorities in support of his due process argument, but he did
not include any citation to relevant authorities or any separate argument to support
this additional argument. Consequently, Payne failed to preserve this argument for
appellate review. See Tex. R. App. P. 33.1(a)(1), 38.1(i).

                                          6
      In Pena v. State, the court of criminal appeals held that Pena had failed to

preserve his due course of law claim because, even though he invoked the Texas

Due Course of Law provision, he at no time argued that the provision affords greater

protection than the federal Due Process Clause. 285 S.W .3d 459, 464 (Tex. Crim.

App. 2009). Here, Payne only argued in his motion to dismiss that the State’s failure

to preserve the DVD of his stop deprived him of due course of law under article 1,

section 19 of the Texas constitution, and he reiterated this same ground at the

hearing on his motion to dismiss. At no time during the hearing on the motion to

dismiss did Payne argue that the Texas Due Course of Law provision provides

greater protection than the federal Due Process Clause, nor did he distinguish the

rights and protections afforded under the Texas Due Course of Law provision from

those provided under the federal Due Process Clause. Accordingly, Payne failed to

preserve this issue for appellate review. See id.

      Even if Payne had preserved this issue for appellate review, it is unpersuasive.

In Salazar v. State, this court addressed at length the issue of whether the Texas

Due Course of Law provision provides a greater level of protection than the federal

Due Process Clause and concluded as follows:

      W e agree with our previous holding and the holding of other Texas
      courts of appeals that the Due Course of Law Clause provides the
      same protection as the Due Process Clause regarding the State’s
      [failure to preserve] potentially useful evidence in a criminal
      prosecution. Therefore, . . . Salazar must demonstrate that the State
      acted in bad faith.



                                          7
298 S.W .3d 273, 277–79 (Tex. App.—Fort W orth 2009, pet. ref’d). W e decline to

disavow our reasoning and holding in Salazar. Therefore, to show a violation of the

Texas Due Course of Law provision, Payne must demonstrate that the State acted

in bad faith. See id.; see also Youngblood, 488 U.S. at 57–58, 109 S. Ct. at 337;

State v. Vasquez, 230 S.W .3d 744, 750–51 (Tex. App.—Houston [14th Dist.] 2007,

no pet.); Salazar v. State, 185 S.W .3d 90, 92 (Tex. App.—San Antonio 2005, no

pet.); Jackson, 50 S.W .3d at 588–89; State v. Rudd, 871 S.W .2d 530, 533 (Tex.

App.—Dallas 1994, no pet.); Alvarado v. State, No. 07-06-00086-CR, 2006 W L

2860973, at *3 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op., not

designated for publication). As already addressed above, there is no evidence that

the State acted in bad faith. Accordingly, the trial court did not abuse its discretion

by denying Payne’s motion to dismiss on the basis of article 1, section 19 of the

Texas constitution.4 W e overrule Payne’s second issue.

      B.     Rejected Spoliation Instructions

      Payne requested that the trial court include in the jury charge one of several

spoliation instructions that he adapted from two example spoliation instructions



      4
        As with his federal due process argument, Payne argues that he was
denied his right “not to testify” under article 1, section 10 of the Texas constitution
because “there were no witnesses to the stop and arrest.” Payne did not argue this
basis for dismissal in his motion to dismiss or at the hearing on his motion to
dismiss. Further, in his brief, Payne did not include any citation to relevant
authorities or any separate argument to support this additional argument.
Consequently, Payne failed to preserve this argument for appellate review. See Tex.
R. App. P. 33.1(a)(1), 38.1(i).

                                          8
provided by the W aco Court of Appeals in Pena III. 5 See Pena III, 226 S.W .3d at

656. The trial court denied each of Payne’s requests.

      In reviewing charge error, we must first determine whether error exists. Druery

v. State, 225 S.W .3d 491, 504 (Tex. Crim. App.), cert. denied, 552 U.S. 1028 (2007).

If we find error, we must then determine whether the error caused sufficient harm to

require reversal. Id.

      Citing Pena III, Payne argues that the “spoliation instruction given by the trial

court was not    . . . a proper instruction” and that his “entitlement to a proper

      5
         The first spoliation instruction that Payne requested stated in relevant part
as follows:

              You may take note of the fact that the [S]tate had made a DVD
      recording of the stop, detention and arrest of the defendant in this case,
      and that as a matter of law such DVD tape is material evidence in this
      case. The fact that the [S]tate lost or destroyed the DVD tape does not,
      in itself, require that you acquit the defendant. It is, however, one factor
      for you to consider in your deliberations.

The second requested spoliation instruction stated in relevant part as follows:

             The State has a duty to gather, preserve, and produce at trial
      evidence which may possess exculpatory value. Such evidence must
      be of a nature that the defendant would be unable to obtain comparable
      evidence through reasonably available means. The State has no duty
      to gather or indefinitely preserve evidence considered by a qualified
      person to have no exculpatory value, so that an as yet unknown
      defendant may later examine the evidence.

             If, after considering all of the proof, you find that the State failed
      to gather or preserve evidence, the contents or qualities of which are
      in issue and the production of which would more probably than not be
      of benefit to the defendant, you may infer that the absent evidence
      would be favorable to the defendant.

                                           9
spoliation instruction is supported by the preceding argument for dismissal based on

the State’s violation of the Due Course of Law provision of Article I, Section 19 of the

Texas Constitution.” Payne’s argument on appeal challenging the trial court’s denial

of his requested instructions is thus based entirely on Pena III and his contention

that the Texas Due Course of Law provision provides greater protection than the

federal Due Process Clause. Accordingly, assuming that Payne preserved this issue

for appellate review,6 in light of our reasoning above confirming this court’s holding

in Salazar that the Texas Due Course of Law provision does not provide a greater

level of protection than the federal Due Process Clause, we hold that the trial court

properly denied Payne’s requested spoliation instructions that were based on the

reasoning and holding in Pena III. W e overrule Payne’s seventh issue.

                             IV. P RIOR DWI C ONVICTION



      6
           Payne argued at the charge conference,

      [W ]e have objections to what is now in the Charge Of The Court,
      paragraph Roman Numeral Three that deals with [spoliation], and that
      it’s our position that because of Article I, Section 19 of the Texas
      Constitution and the Texas statutes requiring the State to preserve the
      evidence, that is material to a case, that we do not have a burden to
      show any type of intentional destruction whatsoever, and that
      intentional should be removed and that it’s not just destroyed. It can be
      evidence that not if otherwise unfaithful; in other words, how they have
      worded it, it fails to account for the Texas law that requires them to
      preserve it, so whether it’s lost, misplaced, destroyed or whatever, the
      fact situation might be that the inability of the State to produce materials
      is potentially exculpatory and useful to the Defendant, provides the
      Defendant with the right to intervene and adverse influence for missing
      evidence.

                                          10
      In his third issue, Payne argues that the trial court abused its discretion by

denying his motion for a mistrial. The record shows that before opening statements,

Payne notified the trial court that a copy of the court’s trial docket sheet had been

posted on a door at the courthouse; that the docket sheet was posted in a location

where members of the jury could have seen it; and that the docket sheet indicates,

among other things, that Payne’s “Offense Description” is “Driving W hile Intoxicated

2nd.” [Emphasis added.] Payne argued that the trial court should grant a mistrial

because the docket sheet informed the jury that he had a prior conviction for DW I

even though the State had agreed to Payne’s motion in limine regarding the

introduction of evidence relating to the prior conviction. On appeal, Payne similarly

argues that his prior conviction was only relevant for purposes of enhancement and,

therefore, that the jury “should not have been made aware that he was previously

convicted of driving while intoxicated before making their decision as to

guilt/innocence.”

      W e review a trial court’s denial of a motion for mistrial under an abuse of

discretion standard. Simpson v. State, 119 S.W .3d 262, 272 (Tex. Crim. App. 2003),

cert. denied, 542 U.S. 905 (2004); Wood v. State, 18 S.W .3d 642, 648 (Tex. Crim.

App. 2000). Mistrial is appropriate for only “highly prejudicial and incurable errors,”

and the trial court is required to grant a motion for a mistrial only when the improper

evidence is “clearly prejudicial to the defendant and is of such character as to

suggest the impossibility of withdrawing the impression produced on the minds of the


                                          11
jurors.” Simpson, 119 S.W .3d at 272; Wood, 18 S.W .3d at 648; see Hawkins v.

State, 135 S.W .3d 72, 77 (Tex. Crim. App. 2004) (stating that a motion for mistrial

will be granted only in “extreme circumstances, where the prejudice is incurable”).

      Here, the docket sheet posting complies with the requirements of code of

criminal procedure article 17.085, which provides that “[t]he clerk of a court that does

not provide online Internet access to that court’s criminal case records shall post in

a designated public place in the courthouse notice of a criminal court docket setting

not less than 48 hours before the docket setting.” Tex. Code Crim. Proc. Ann. art.

17.085 (Vernon Supp. 2009).           Also, Payne’s argument rests upon mere

speculation—there is no evidence that the State made any of the jurors “aware” of

Payne’s previous conviction or that any of the jurors actually observed the

complained-of information on the docket sheet. Therefore, there is nothing in the

record demonstrating that any of the jurors had information that Payne had a prior

conviction for DW I. Payne concedes this, stating that “it is impossible to know for

certain which jurors or whether all of the jurors were exposed to the information.”

There being a complete absence in the record of any evidence of clear prejudice to

Payne, we hold that the trial court did not abuse its discretion by denying Payne’s

motion for a mistrial. See Simpson, 119 S.W .3d at 272; Wood, 18 S.W .3d at 648.

W e overrule Payne’s third issue.

                              V. M OTION TO S UPPRESS




                                          12
       In his fourth issue, Payne argues that the trial court erred by denying his

motion to suppress because Trooper Lain did not have reasonable suspicion to

initiate the stop of his vehicle.

       W e review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. 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). W e give

almost total deference to a trial court’s rulings on questions of historical fact and

application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor, but we review de novo application-of-law-to-fact questions that do not

turn on credibility and demeanor. Amador, 221 S.W .3d at 673; Estrada v. State, 154

S.W .3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W .3d 644, 652–53

(Tex. Crim. App. 2002).

       An officer conducts a lawful stop when he has reasonable suspicion to believe

that an individual is violating the law. Ford v. State, 158 S.W .3d 488, 492 (Tex.

Crim. App. 2005); Tex. Dep’t of Public Safety v. Gilfeather, 293 S.W .3d 875, 879

(Tex. App.—Fort W orth 2009, no pet.) (op. on reh’g). Reasonable suspicion exists

if the officer has specific, articulable facts that, when combined with rational

inferences from those facts, would lead him to reasonably conclude that a particular

person actually is, has been, or soon will be engaged in criminal activity. Ford, 158

S.W .3d at 492; Garcia v. State, 43 S.W .3d 527, 530 (Tex. Crim. App. 2001). This

is an objective standard that disregards any subjective intent of the officer making


                                         13
the stop and looks solely to whether an objective basis for the stop exists. Ford, 158

S.W .3d at 492. A reasonable-suspicion determination is made by considering the

totality of the circumstances. Id. at 492–93.

      Here, Trooper Lain testified that he used radar equipment to verify that

Payne’s vehicle was traveling at sixty-eight and seventy-one miles per hour on a

road with a speed limit of only fifty-five miles per hour and, therefore, that he stopped

Payne’s vehicle for a speeding violation. Trooper Lain accordingly had reasonable

suspicion to stop Payne for the offense of speeding. See id.; Gilfeather, 293 S.W .3d

at 879–80 (reasoning that officer had reasonable suspicion to stop defendant

because defendant was speeding); Icke v. State, 36 S.W .3d 913, 915–16 (Tex.

App.—Houston [1st Dist.] 2001, pet. ref’d) (affirming trial court’s denial of

defendant’s motion to suppress because officer had reasonable suspicion to

conclude that defendant was speeding). W e overrule Payne’s fourth issue.

                                  VI. PBT E VIDENCE

      In his fifth issue, Payne argues that the trial court abused its discretion by

permitting the State to introduce the PBT evidence because the State failed to

demonstrate that the PBT is scientifically reliable as required by Kelly v. State, 824

S.W .2d 568, 573 (Tex. Crim. App. 1992). Assuming without deciding that the trial

court abused its discretion, we conclude that Payne was not harmed by the

admission of the PBT evidence.




                                           14
      The erroneous admission of evidence is nonconstitutional error. See King v.

State, 953 S.W .2d 266, 271 (Tex. Crim. App. 1997). Nonconstitutional error “that

does not affect substantial rights must be disregarded.” Tex. R. App. P. 44.2(b). A

substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict. King, 953 S.W .2d at 271 (citing Kotteakos

v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall v.

State, 961 S.W .2d 639, 643 (Tex. App.—Fort W orth 1998, pet. ref’d). Conversely,

an error does not affect a substantial right if we have “fair assurance that the error

did not influence the jury, or had but a slight effect.” Solomon v. State, 49 S.W .3d

356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W .2d 410, 417 (Tex. Crim.

App. 1998). In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury’s consideration, the nature

of the evidence supporting the verdict, and the character of the alleged error and

how it might be considered in connection with other evidence in the case. Motilla v.

State, 78 S.W .3d 352, 355 (Tex. Crim. App. 2002). W e may also consider the jury

instructions, the State’s theory and any defensive theories, whether the State

emphasized the error, closing arguments, and even voir dire, if applicable. Id. at

355–56.

      The PBT evidence was cumulative of other evidence demonstrating Payne’s

intoxication. Excluding the testimony about the PBT, Trooper Lain testified that he

formed the opinion that Payne was operating a motor vehicle while intoxicated based


                                          15
on (1) the odor of alcohol on Payne’s breath; (2) Payne’s red, bloodshot eyes;

(3) Payne’s admission of drinking beer; (4) the multiple clues observed when Payne

performed the field sobriety tests, which included six out of six clues indicating

intoxication on the HGN test; and (5) Payne’s “driving behavior” of speeding and

slowing down his vehicle, turning on the turn signal, and beginning to pull over but

then returning to the road and traveling a little farther before ultimately stopping.

Trooper Lain testified that Payne became argumentative, upset, and insulting after

being arrested, and Payne admitted that he had actually consumed two beers before

being pulled over by Trooper Lain, instead of only one beer as he told Trooper Lain.

      The State did not emphasize the PBT evidence during its case-in-chief or

during its closing argument. Trooper Lain testified only that the PBT indicated the

presence of alcohol; he did not testify as to the specific concentration of alcohol

indicated by the PBT. Not including the exchange between the trial court, defense

counsel, and the State over the admissibility of the PBT, Trooper Lain’s testimony

about the PBT took up under one page of the record. The State mentioned the PBT

at closing argument, but it did so only as part of its argument that Payne knew not

to give a breath specimen at the sheriff’s office because he had seen the results of

the PBT.

      Viewing the record as a whole, we conclude with fair assurance that the error,

if any, either did not influence the jury or that it had but a slight effect on the jury.

See Motilla, 78 S.W .3d at 355; Solomon, 49 S.W .3d at 365; Baley v. State, No. 11-


                                           16
06-00098-CR, 2007 W L 4285266, at *3 (Tex. App.—Eastland Dec. 6, 2007, no pet.)

(not designated for publication) (holding that erroneous admission of portable breath

test evidence was harmless because it was cumulative of other evidence

establishing intoxication and constituted a minor part of the State’s evidence).

Accordingly, we overrule Payne’s fifth issue.

                            VII. ARTICLE 38.23 INSTRUCTION

       In his sixth issue, Payne argues that the trial court erred by refusing to submit

an article 38.23 instruction to the jury. 7

       Code of criminal procedure article 38.23(a) provides as follows:

             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) (Vernon 2005). A defendant’s right to the

submission of a jury instruction under article 38.23(a) is thus limited to disputed

issues of fact that are material to his claim of a constitutional or statutory violation




       7
       W e apply the same charge-error standard of review set forth, supra. See
Druery, 225 S.W .3d at 504.

                                              17
that would render evidence inadmissible. Madden v. State, 242 S.W .3d 504, 509–10

(Tex. Crim. App. 2007).

      There are three requirements that a defendant must meet before he is entitled

to the submission of 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) that contested factual issue must be material to the

lawfulness of the challenged conduct in obtaining the evidence. Id. at 510.

      Trooper Lain testified that he observed Payne’s vehicle traveling at what he

thought was a speed greater than the speed limit of fifty-five miles per hour and that

he thereafter used his radar detector after pulling behind Payne’s vehicle to verify

that Payne was traveling at sixty-eight and seventy-one miles per hour. Payne

testified that he disagreed with Trooper Lain’s testimony that he was traveling at

seventy-one miles per hour, but he admitted that he was speeding when Trooper

Lain pulled in behind him:

      I noticed there was a vehicle that pulled in behind me . . . . W hen I
      seen the headlights of the vehicle, I looked down at the speedometer
      and I was doing sixty miles an hour. I rolled out of the throttle and
      didn’t touch the brakes and let the truck come down to fifty-five because
      I realized at that point in time I was five miles over. [Emphasis added.]

Thus, unlike in Reynolds v. State, in which the defendant did dispute that he was

speeding, Payne did not dispute—indeed, he even confirmed—that he was

speeding. 848 S.W .2d 148, 148–49 (Tex. Crim. App. 1993). That Payne disputed

by how much he was speeding did not raise a genuine fact issue regarding whether


                                         18
he was, in fact, speeding. See Madden, 242 S.W .3d at 511 (“The disputed fact must

be an essential one in deciding the lawfulness of the challenged conduct.”).

Accordingly, the record demonstrates that there is no genuine dispute about whether

Payne was speeding. W e hold that the trial court properly denied Payne’s request

for an article 38.23(a) instruction, and we overrule Payne’s sixth issue. See Tex.

Code Crim. Proc. Ann. art. 38.23(a); Madden, 242 S.W .3d at 509–10.

                                VIII. C ONCLUSION

      Having overruled all seven of Payne’s issues, we affirm the trial court’s

judgment.




                                             BILL MEIER
                                             JUSTICE

PANEL: MCCOY and MEIER, JJ.; and DIXON W . HOLMAN (Senior Justice,
Retired, Sitting by Assignment).

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

DELIVERED: April 29, 2010




                                        19
