                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00109-CR


DONALD LEWIS                                                            APPELLANT

                                          V.

THE STATE OF TEXAS                                                            STATE


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         FROM COUNTY CRIMINAL COURT NO. 3 OF DENTON COUNTY

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                          MEMORANDUM OPINION1

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                                  I. INTRODUCTION

      Appellant Donald Lewis appeals his conviction for driving while intoxicated

(DWI).      Lewis raises four issues on appeal regarding voir dire, the

constitutionality of the DWI statute, and the jury instructions. We will affirm.




      1
         See Tex. R. App. P. 47.4.
                   II. FACTUAL AND PROCEDURAL BACKGROUND

      Several Fort Worth police officers worked an off-duty assignment directing

traffic at Texas Motor Speedway one race day in April 2011. At around 10:30

that night, there was a lot of pedestrian and vehicular traffic leaving the

speedway.    Officer Jennifer Bell was notified by radio to be on the lookout for a

golf cart with three people in it; the driver was driving in the grass and in and out

of the vehicles that were lined up to leave the speedway, and the golf cart had

almost hit a pedestrian. She soon saw the golf cart coming towards her with no

lights on weaving around vehicles. The golf cart almost hit Officer Bell, and she

grabbed the driver‟s arm and told him, “[S]top, police, stop now.” The driver

replied that he did not have to stop and continued driving.        Officer Bell was

wearing her police uniform with a fluorescent yellow safety vest that said “Police”

on it. She ran after the golf cart and radioed to Corporal D.J. Lusty, another off-

duty officer working traffic at the speedway that night, to stop the golf cart

because it had almost hit her and because the driver would not stop.

      Corporal Lusty saw the golf cart coming towards him and told the driver,

“[S]top, police.” The golf cart did not stop, and Corporal Lusty stepped out of the

way as the right side of the golf cart struck his arm. Corporal Lusty ran alongside

the driver‟s side of the golf cart and told the driver to pull over. Corporal Lusty

grabbed the steering wheel and attempted to steer the golf cart toward a fence to

slow it down. The driver asked, “[W]hat‟s the problem, officer?” Corporal Lusty

replied that the golf cart had hit him and had almost hit another officer. Corporal


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Lusty grabbed the back of the driver‟s shirt, causing it to tear. Corporal Lusty

then jumped on the back of the golf cart and continued to tell the driver to stop.

With the help of a speedway employee on a four-wheeler, the officer stopped the

golf cart. The driver, identified as Lewis, was handcuffed.

      Officer Carlene Bounds conducted the DWI investigation after Lewis was

arrested. She noticed that Lewis had an odor of alcoholic beverage on him, that

his speech was slurred, and that his eyes were bloodshot and watery. Lewis

admitted that he had been drinking alcoholic beverages. He failed field sobriety

tests and was taken to the police station, where he consented to a breath test.

The results showed that Lewis had an alcohol concentration of 0.152 and 0.135

grams of alcohol per 210 liters of breath. Retrograde extrapolation evidence

presented at trial showed that Lewis would have had an alcohol concentration of

between 0.14 and 0.16 grams of alcohol per 210 liters of breath at 10:30 that

night, when Corporal Lusty stopped him.

      Lewis was charged with DWI and misdemeanor evading arrest. The jury

found Lewis guilty of DWI and found him not guilty of evading arrest. The trial

court sentenced Lewis to 120 days in jail and a $500 fine, suspended imposition

of the jail sentence, and placed Lewis on community supervision for fifteen

months.

          III. LIMITATION OF DEFENSE COUNSEL’S QUESTIONING IN VOIR DIRE

      In his first issue, Lewis argues that the trial court abused its discretion by

not allowing defense counsel to discuss with the jury panel during voir dire the


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difference between misdemeanor evading arrest (which does not require the use

of a motor vehicle) and felony evading arrest (which, in this case, would require

the use of a motor vehicle).2 See Tex. Penal Code Ann. § 38.04(a), (b). The

State objected that Lewis had not been charged with felony evading arrest so

that offense was not a proper subject of voir dire. Defense counsel responded

that felony evading arrest (and the definition of a motor vehicle as it applies to

felony evading arrest) were relevant to both the law and the facts:

      We believe as the trial continues that there is going to be testimony
      and evidence that comes out that Mr. Lewis was arrested for felony
      evading. We‟d like to educate the jury on the definition of a motor
      vehicle and what makes it felony evading rather than just a normal
      evading case, and because of that, we want to use the slides to
      educate them to those purposes.

The trial court did not allow defense counsel to present the felony evading arrest

definition of a motor vehicle to the panel.

      Lewis argues that defense counsel should have been allowed to show the

“absurdity” between charging Lewis with DWI (which requires the use of a motor

vehicle) and not charging him with felony evading arrest (which also requires the

use of a motor vehicle) but instead charging him with misdemeanor evading

arrest (which does not require the use of a motor vehicle); he argues that the

issue was “tied to the credibility of the officers and the good faith of the


      2
       Specifically, defense counsel was prohibited from showing the jury panel
a PowerPoint slide containing the definition of a motor vehicle as it applies to the
felony evading arrest statute. See Tex. Transp. Code Ann. § 541.201(23) (West
2011); Tex. Penal Code Ann. § 38.04(b), (c) (West Supp. 2012).


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prosecutors.” As the State points out, it has considerable discretion in deciding

what charges to bring against a defendant. See Raetzsch v. State, 709 S.W.2d

39, 41 (Tex. App.—Corpus Christi 1986, no pet.) (citing United States v.

Goodwin, 457 U.S. 368, 382, 102 S. Ct. 2485, 2493 (1982)). Here, the State

chose to charge Lewis with misdemeanor evading arrest, a lesser-included

offense of felony evading arrest. See Tex. Penal Code Ann. § 38.04(a), (b); see

also Powell v. State, 206 S.W.3d 142, 143 (Tex. App.—Waco 2006, pet. ref‟d)

(explaining that evading arrest on foot is a lesser-included offense of evading

arrest by vehicle). Because felony evading arrest was not at issue, the trial court

did not abuse its discretion by precluding defense counsel from presenting to the

jury panel the definition of a motor vehicle that is applicable to that offense. See

Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002) (explaining that trial

court has broad discretion over the propriety of a particular question during jury

selection and that discretion will not be disturbed absent an abuse of discretion);

see also Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012)

(explaining that trial court retains discretion to restrict voir dire questions that are

confusing or misleading). We overrule Lewis‟s first issue.

                     IV. THE DEFINITION OF A “MOTOR VEHICLE”

      In part of his second issue, Lewis argues that the State‟s defining, during

voir dire, a “motor vehicle” to include “anything that can put you on the road” was

overbroad and misled the jury panel. Lewis did not object to this statement and,




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consequently, did not preserve his complaint for our review.3 See Tex. R. App.

P. 33.1(a)(1) (requiring a timely request, objection, or motion stating the specific

grounds for the desired ruling to preserve a complaint for review); Clark v. State,

365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see also Espinosa v. State, 194

S.W.3d 703, 708 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (“When [an]

appellant complains about an improper remark by the prosecutor during voir dire,

[the] appellant must object when the remark is made.”).

      Lewis further argues in the remainder of his second issue and in his third

issue that if, in fact, the DWI statute‟s definition of a motor vehicle does include

“skateboards and roller skates and various household conveniences,” then the

statute is overbroad and void for vagueness.           Lewis did not challenge the

constitutionality of the statute in the trial court and has thus failed to preserve this

complaint for our review.4 See Tex. R. App. P. 33.1(a)(1); Karenev v. State, 281

S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding that appellant may not raise

      3
        In voir dire, the State also read to the jury panel the correct definition of a
“motor vehicle” applicable to the offense of DWI—“a device in, on, or by which a
person or property is or may be transported or drawn on a highway.” See Tex.
Penal Code Ann. § 32.34(a)(1) (West 2011) (defining motor vehicle as such),
§ 49.01(3) (West 2011) (applying section 32.34‟s definition of a motor vehicle to
intoxication offense chapter). The State then offered a horse and buggy as an
example and elicited from the jury panel other examples, including a bicycle, a
skateboard, a moped, a golf cart, and a tractor. Defense counsel did not object
during this exchange.
      4
       To the extent that Lewis‟s argument could be interpreted as challenging
the sufficiency of the evidence to prove the motor-vehicle element of DWI, Lewis
concedes in his brief that a golf cart is a motor vehicle under penal code section
32.34(a)‟s definition.


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facial challenge to constitutionality of statute for first time on appeal); Holmes v.

State, 380 S.W.3d 307, 308 (Tex. App.—Fort Worth 2012, pet. ref‟d) (“[A]

challenge to the constitutionality of a statute is a forfeitable right and must be

preserved in the trial court during or after trial.”). We overrule Lewis‟s second

and third issues.

                          V. ARTICLE 38.23 INSTRUCTION

      In his fourth issue, Lewis argues that the trial court erred by refusing his

request to include an article 38.23 instruction in the jury charge regarding the

officers‟ reasonable suspicion to stop him.

      Article 38.23(a) of the code of criminal procedure prohibits the admission

of evidence against an accused in a criminal trial if the evidence was obtained in

violation of the Texas or United States constitutions or laws. Tex. Code Crim.

Proc. Ann. art. 38.23(a) (West 2005). The statute further provides,

      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.

Id.

      If a defendant successfully raises a factual dispute over whether evidence

was illegally obtained, inclusion of a properly-worded article 38.23 instruction is

mandatory. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). To

be entitled to the submission of a jury instruction under article 38.23(a), a

defendant must establish that (1) the evidence heard by the jury raises an issue


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of fact; (2) the evidence on that fact is affirmatively contested; and (3) the

contested factual issue is material to the lawfulness of the challenged conduct in

obtaining the evidence. Id.; cf. Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.

Crim. App. 2008).     If there is no dispute regarding the factual basis for the

challenged search or seizure, then the legality of the conduct is determined by

the trial judge alone—as a question of law—and a jury instruction is

inappropriate.   Madden, 242 S.W.3d at 510.          “A fact issue about whether

evidence was legally obtained may be raised „from any source, and the evidence

may be strong, weak, contradicted, unimpeached, or unbelievable.‟” Garza v.

State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting Wilkerson v. State,

933 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1996, pet. ref‟d)).

      Here, Lewis argues that the testimony of three witnesses—himself and the

two passengers in his golf cart—contradicted Officer Bell‟s testimony that she

yelled at Lewis to stop and that he almost struck her. One of the passengers,

Georg Schmid, testified that the parking lot was chaotic and that he did not know

the police were trying to stop the golf cart until Corporal Lusty jumped on the cart.

When asked if he remembered a female officer telling them to stop, he replied, “I

don‟t remember [a] female officer.      I remember a female parking attendant.”

Schmid also testified that Lewis almost hit only “the dude that jumped in the way”

and jumped on the golf cart—Corporal Lusty. Jennings, the other passenger,

testified that he saw what he thought was a “parking lot attendant” tell them to

stop and said something about being on the grass, but he did not know whether


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Lewis heard the attendant.      Jennings testified that he did not see Lewis hit

anyone with his golf cart. Lewis himself testified that a female parking attendant

stepped in front of his golf cart and that he swerved to “kind of go around her,” at

which point Jennings told him that she had said something to them about being

on the grass. Lewis testified that he did not know she was a police officer and

that she never grabbed his arm or told him to stop.

      This evidence raises, at most, a disputed fact issue about whether Lewis

knew that a police officer—Officer Bell—was trying to stop him.5 None of the

above testimony nor any other evidence in the record creates a disputed issue of

fact regarding Lewis driving in and out of the grass and vehicles and almost

hitting Officer Bell or Corporal Lusty—as a basis for reasonable suspicion to stop

Lewis. See Madden, 242 S.W.3d at 513 (explaining that no disputed fact exists

if, for example, officer testified that appellant “did speed” and appellant testified

that he “doesn‟t remember or doesn‟t know” whether he was speeding because

there is no affirmative evidence of a factual conflict). Accordingly, Lewis was not

entitled to an article 38.23 jury instruction. See Hamal v. State, 390 S.W.3d 302,

302 (Tex. Crim. App. 2012). We overrule Lewis‟s fourth issue.




      5
       The jury found Lewis not guilty of evading arrest.


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                                VI. CONCLUSION

      Having overruled Lewis‟s four issues, we affirm the trial court‟s judgment.




                                                   SUE WALKER
                                                   JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

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

DELIVERED: April 18, 2013




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