                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-09-00448-CR

ANGELA DODD HAMAL                                                APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

           FROM THE 271ST DISTRICT COURT OF WISE COUNTY

                                   ----------

                                 OPINION
                                   ----------

                               I. INTRODUCTION

      Appellant Angela Dodd Hamal appeals her conviction for possession of a

controlled substance in an amount of four grams or more but less than 200

grams. In three points, Hamal argues that the trial court erred by denying her

motion to suppress and her requested jury instructions. We will reverse and

remand for a new trial.
                   II. FACTUAL AND PROCEDURAL BACKGROUND

      Texas Department of Public Safety Trooper David Riggs stopped Hamal‘s

vehicle after witnessing it travelling 79 miles per hour in a 65-miles-per-hour

zone. When he approached Hamal‘s vehicle, Trooper Riggs noticed that Hamal

was nervous, her hands were shaking, and she was looking down into a purse or

bag. After asking Hamal to get out of the car, Trooper Riggs asked her several

questions, including, ―Have you ever been in any trouble for anything?‖ Hamal

responded, ―No.‖ Hamal also responded, ―No,‖ when asked if she had anything

illegal in her car. Trooper Riggs went back to his police car and requested that

dispatch run her driver‘s license number. The criminal history check revealed

that Hamal had been arrested nine times, four of which were for possession of

controlled substances.

      Believing that Hamal ―may be hiding something,‖ Trooper Riggs asked for

consent to search her vehicle, which she denied. Trooper Riggs then called

dispatch and requested a drug detection canine unit.       While waiting for the

canine unit to arrive, Trooper Riggs explained to Hamal that she had ―seemed

kind of nervous‖ when she got out of her car and had lied when she told him that

she ―had never been in trouble and never been arrested.‖ Hamal replied, ―No.

No. I said that I am not in any trouble right now. I have been arrested. I do have

a past, and it was a long time ago.‖

      Corporal Robert Payne of the Wise County Sherriff‘s Office arrived with his

drug dog approximately thirty-two minutes after the initial stop. Approximately


                                        2
ten minutes later, the dog began sniffing Hamal‘s car and alerted on it. A search

of   her car   revealed a pipe and            a bag   containing   4.82 grams of

methamphetamine. Hamal was arrested.

      Hamal filed a motion to suppress all evidence seized as a result of her

arrest, and without holding a hearing, the trial court denied her motion. Neither

party requested findings of fact or conclusions of law.

      At trial, after both parties rested, the trial court denied Hamal‘s proposed

jury instructions, including her request for a code of criminal procedure article

38.23 instruction.    A jury convicted Hamal of possession of a controlled

substance and, after she pleaded ―true‖ to enhancement offenses, assessed

punishment at thirty-five years‘ confinement.       After a hearing, the trial court

denied Hamal‘s motion for new trial, in which she argued that the trial court had

erred by denying her motion to suppress. This appeal followed.

                 III. EXPERT TESTIMONY REGARDING CANINE SNIFF

      In a portion of Hamal‘s first point, she asserts that the trial court abused its

discretion by overruling her rule 702 objection to the testimony of Corporal Payne

as an expert witness regarding the canine sniff.1


      1
        Hamal argues that the erroneous admission of Corporal Payne‘s
testimony about the canine sniff was one reason why the trial court should have
granted her motion to suppress. She did not urge this ground as part of her
motion to suppress or in her motion for new trial based on the denial of her
motion to suppress. Because we hold that the trial court did not abuse its
discretion by overruling her rule 702 objection to this testimony, however, we
need not address whether this was a proper basis for her motion to suppress.


                                          3
                       A. Standard of Review and Rule 702

       We review a trial court‘s ruling on admissibility of scientific evidence under

an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542

(Tex. Crim. App. 2000). We review the trial court‘s ruling in light of the evidence

that was before the court at the time of the ruling. Id. We must uphold the ruling

if it was within the zone of reasonable disagreement. Id.

       Rule of evidence 702, governing admission of expert testimony, provides

that ―[i]f scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education may

testify thereto in the form of an opinion or otherwise.‖ Tex. R. Evid. 702. A

proponent of scientific evidence must show by clear and convincing proof that the

proffered evidence is sufficiently relevant and reliable to assist a factfinder in

determining a fact issue or understanding the evidence. See Weatherred, 15

S.W.3d at 542; State v. Smith, 335 S.W.3d 706, 711 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref‘d).

       The court of criminal appeals has prescribed three criteria for assessing

reliability of scientific evidence and has identified seven nonexclusive factors for

consideration. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992); see

Winston v. State, 78 S.W.3d 522, 525 (Tex. App.—Houston [14th Dist.] 2002,

pet. ref‘d). However, because interpretation of a dog‘s reaction to a scent is

based on training and experience rather than scientific principles, we apply the


                                           4
―less rigorous‖ test set forth in Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim.

App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex.

Crim. App. 1999). See Winston, 78 S.W.3d at 525–26 (applying Nenno standard

to admissibility of dog-scent lineups); see also Smith, 335 S.W.3d at 711 (same).

Under this standard, a court considers whether (1) the field of expertise is

legitimate, (2) the subject matter of the expert‘s testimony is within the scope of

the field, and (3) the expert‘s testimony properly relies on or utilizes the principles

involved in the field. Nenno, 970 S.W.2d at 561; Winston, 78 S.W.3d at 526; see

also Smith, 335 S.W.3d at 711.

                            B. Corporal Payne’s Testimony

       Corporal Payne testified that after completing an eighty-hour training

course, he and the dog were nationally certified in drug interdiction and that he

was also nationally certified as a handler for the dog. To obtain certification, the

dog had to prove its accuracy in locating concealed narcotics, including

methamphetamine.        Corporal Payne testified that the dog had not made any

errors when it completed the national certification testing. He also testified that

he had used the dog to detect drugs on many occasions and that the dog had

successfully detected drugs or controlled substances inside vehicles. He said

that the dog alerted through ―a big head turn. You‘ll see his head, his shoulders,

his whole body turn back, and follow the odor with his nose. And then he‘ll go

into a sitting position.‖




                                          5
      Corporal Payne also testified about the events recorded by Trooper

Riggs‘s dashboard camera and about the three separate alerts that the dog

made on Hamal‘s car:        (1) the alert on the passenger side door almost

immediately after approaching the vehicle, (2) the alert after the dog jumped up

and sniffed the interior of Hamal‘s car through the open passenger side window,

and (3) the alert once the dog entered the vehicle. Corporal Payne stated that as

he and Trooper Riggs searched Hamal‘s car, the dog continued to alert on the

car. Corporal Payne said that after the dog alerted, he gave the dog its reward, a

white rubber ball.

      During cross-examination, Corporal Payne stated that he ―wouldn‘t

necessarily say [that he is] an expert witness,‖ that he is not an expert at dog

training, but that he is an expert at dog handling and could testify about what the

dog did. He also testified that he had not trained the dog but that he knew what

the dog‘s alert was, what training the dog had received, how responsive the dog

was, and the dog‘s error rate. He said that he did not keep a numeric log of the

dog‘s error rate and that determining the error rate is complicated because

lingering scents could cause the dog to alert even after contraband has been

removed.

             C. Admission of Testimony Not Abuse of Discretion

      In four subpoints, Hamal attacks the trial court‘s implied finding that

Corporal Payne‘s testimony satisfied the requirements of Nenno’s third prong:




                                        6
whether the expert‘s testimony properly relies upon or utilizes the principles

involved in the field. See 970 S.W.2d at 561.

      First, she alleges that Corporal Payne‘s ―admission‖ that he was not

necessarily an expert and was not present when the dog was trained required

that the trial court sustain her objection. However, a review of the record reveals

that although Corporal Payne admitted that he was not an expert in dog training,

he detailed his credentials and experience and stated that he was nationally

certified in dog handling and was an expert in that area.         Corporal Payne‘s

testimony supports the trial court‘s implied finding that he was qualified to testify

as an expert witness in dog handling.

      Second, Hamal asserts that Corporal Payne was disqualified as an expert

witness because he was not present when the dog was trained, did not know the

dog‘s error rate, and did not bring the dog‘s field records with him for Hamal‘s

inspection.   Corporal Payne testified about his credentials, expertise, and his

experience with the dog that alerted on Hamal‘s car.          Specifically, Corporal

Payne stated that he and the dog had received national certification after

completing an eighty-hour training course that included proving the dog‘s ability

to detect illegal substances, including methamphetamine.           Corporal Payne

testified that the dog had detected drugs in vehicles on ―many occasions.‖ Thus,

the trial court reasonably could have found that Corporal Payne was qualified to

testify about the dog‘s actions on the night of Hamal‘s arrest.




                                         7
       Third, Hamal asserts that the trial court should have excluded Corporal

Payne‘s testimony because he contradicted himself about how the dog alerts to

the scent of narcotics and about the dog‘s reward. Hamal asserts that Corporal

Payne told her on the night of her arrest that the dog alerted by sitting down and

that this conflicted with his testimony at trial that the dog alerted by making a ―‗big

head turn‘ (basically a full body turn) and then he sits.‖ However, the trial court

could have concluded that Corporal Payne‘s testimony simply elaborated on the

dog‘s alert process as explained to Hamal on the night of her arrest. Hamal also

points to a conflict between the video recording of the canine sniff, which she

alleges shows Corporal Payne encouraging the dog with a black object, and

Corporal Payne‘s testimony that the dog‘s reward is a ―white, roundish rubber

ball.‖ Although the video does not clearly show the black object Hamal refers to,

if in fact two distinct rewards existed, Hamal did not put on conflicting expert

testimony that multiple rewards for drug dogs is improper. Consequently, the trial

court could have determined that the use of multiple rewards was a proper

principle in the field of canine-sniff testing.

       Fourth, Hamal asserts that the video recording shows that Corporal Payne

―cued‖ the dog. She asserts that Corporal Payne ―led the dog directly to [her

car], ordered the dog to stick his head in the window, and finally opened the door

and ordered the dog into [her] car.‖ At trial, Hamal did not offer expert testimony

as to what constitutes ―cueing,‖ and on appeal, she does not explain how

Corporal Payne‘s actions, as seen on the video, qualify as ―cueing.‖ Thus, the


                                            8
trial court was within its discretion to find that Corporal Payne did not ―cue‖ the

dog and utilized the principles of the field of canine-sniff testing.

      Additionally, the record does not support Hamal‘s sequence of events.

The record shows that after a discussion with Hamal, Corporal Payne and his

dog approached the passenger side of Hamal‘s car from the grassy area beyond

the road‘s shoulder, walked to the front of the car, and walked along the

passenger side toward the rear of the car, and that almost immediately the dog

turned around and sat down—―alerted‖ per Corporal Payne‘s testimony—by

Hamal‘s passenger door. Corporal Payne then instructed the dog to jump onto

its hind legs and sniff the interior of Hamal‘s car through the open passenger

window, after which the dog again sat down—noted as a second alert in Corporal

Payne‘s testimony.     After the dog sat down a second time, Corporal Payne

opened Hamal‘s unlocked passenger side door and ordered the dog inside.

Although not visible on the video recording, Corporal Payne testified that the dog

alerted a third time while inside Hamal‘s car.

      Having addressed all of Hamal‘s complaints regarding her rule 702

objection, we conclude that Corporal Payne‘s testimony did not fail the Nenno

test and that the trial court did not abuse its discretion by admitting Corporal

Payne‘s testimony over Hamal‘s rule 702 objection.           See Tex. R. Evid. 702;

Nenno, 970 S.W.2d at 561. We overrule this portion of Hamal‘s first point.




                                           9
                              IV. MOTION TO SUPPRESS

      In the remainder of her first point, Hamal argues that the trial court erred by

denying her motion to suppress because Trooper Riggs lacked reasonable

suspicion to continue detaining her for a canine sniff.

                              A. Standard of Review

      We 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).

In reviewing the trial court‘s decision, we do not engage in our own factual

review. 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.). 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. 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). 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.

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). But when application-of-law-to-fact questions do not turn on the credibility


                                          10
and demeanor of the witnesses, we review the trial court‘s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53. Stated another

way, when reviewing the trial court‘s ruling on a motion to suppress, we must

view the evidence in the light most favorable to the trial court‘s ruling. Wiede,

214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

      When, as here, the record is silent on the reasons for the trial court‘s

ruling, or when there are no explicit fact findings and neither party timely

requested findings and conclusions from the trial court, we imply the necessary

fact findings that would support the trial court‘s ruling if the evidence, viewed in

the light most favorable to the trial court‘s ruling, supports those findings. State

v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214

S.W.3d at 25. We then review the trial court‘s legal ruling de novo unless the

implied fact findings supported by the record are also dispositive of the legal

ruling. Kelly, 204 S.W.3d at 819.

                       B. Law on Reasonable Suspicion

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at

24. Once a defendant establishes that a search or seizure occurred without a

warrant, the State bears the burden to establish that the search or seizure was

conducted pursuant to a warrant or was reasonable. Amador, 221 S.W.3d at




                                        11
672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v.

State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

      A detention, as opposed to an arrest, may be justified on less than

probable cause if a person is reasonably suspected of criminal activity based on

specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880

(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).

Reasonable suspicion exists when, based on the totality of the circumstances,

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

158 S.W.3d at 492. This is an objective standard that disregards any subjective

intent of the officer making the stop and looks solely to whether an objective

basis for the stop exists. Id.

      During an investigative traffic stop, an officer is entitled to request

information concerning the driver‘s license, ownership of the vehicle, the driver‘s

insurance information, the driver‘s destination, and the purpose of the trip.

Lambeth v. State, 221 S.W.3d 831, 836 (Tex. App.—Fort Worth 2007, pet. ref‘d)

(en banc) (op. on reh‘g); Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.—

Fort Worth 1998, pet. ref‘d); see also United States v. Shabazz, 993 F.2d 431,

436–37 (5th Cir. 1993); Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App.

[Panel Op.] 1979). An officer may also conduct a computer check on the driver‘s

license and registration and for outstanding warrants as long as it does not


                                        12
unreasonably prolong the time necessary to effect the purpose of the initial stop.

See Kothe v. State, 152 S.W.3d 54, 63, 65 (Tex. Crim. App. 2004). Once an

officer concludes the investigation of the conduct that initiated the stop, continued

detention of a person is permitted only if there is reasonable suspicion to believe

that another offense has been or is being committed. Davis v. State, 947 S.W.2d

240, 245 (Tex. Crim. App. 1997).

      Generally, a canine sweep does not constitute a search within the meaning

of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 707, 103

S. Ct. 2637, 2644–45 (1983); Mohmed, 977 S.W.2d at 628; see also Crockett v.

State, 803 S.W.2d 308, 310 n.5 (Tex. Crim. App. 1991).              The temporary

detention of an automobile to allow an olfactory inspection by a police dog

trained to detect the odor of illegal drugs is not offensive to the Fourth

Amendment when based on a reasonable suspicion that the automobile contains

narcotics. Mohmed, 977 S.W.2d at 628; see also Crockett, 803 S.W.2d at 311.

            C. Videotape of Stop and Trooper Riggs’s Testimony

      During Hamal‘s trial, the jury watched a video and audio recording of the

stop taken by Trooper Riggs‘s dashboard camera. The recording shows that

Hamal and Trooper Riggs brought their vehicles to a stop on the shoulder of the




                                         13
highway.2 Trooper Riggs approached Hamal‘s car and initiated the following

conversation with Hamal through her open passenger window:

      Trooper Riggs:     I was stopping you for speed.

      Hamal:             I know.

      Trooper Riggs:     Do you have your driver‘s license?

      Hamal:             I have my driver‘s license and my insurance, and
                         I am really sorry.

      Trooper Riggs:     Okay, where are you headed to?

      Hamal:             Fort Worth.

      Trooper Riggs:     From where?

      Hamal:             Decatur.

      Trooper Riggs:     Coming from here. Can you step back here with
                         me?

      Hamal:             Yes.

      Trooper Riggs:     Back here out of the road. I will talk to you.

      Hamal:             Okay. Okay.[3]

      Trooper Riggs:     Is that your right address?

      Hamal:             Yes, sir. I‘m going home to Arlington.           Fort
                         Worth, Arlington.


      2
       The recording shows that both cars pulled off the highway at the 2:35 time
stamp. For clarity, we treat this time as 0:00 and outline all events thereafter as
occurring at an elapsed time from this point.
      3
      After exiting her car, Hamal joined Trooper Riggs on the shoulder of the
highway.


                                        14
      Trooper Riggs:    But you were coming from Decatur.

      Hamal:            Yes, sir.

      Trooper Riggs:    What do you do here?

      Hamal:            I was up here visiting a friend.

      Trooper Riggs:    Okay, you‘re not working or anything?

      Hamal:            No.

      Trooper Riggs:    What year model is your car?

      Hamal:            97.

      Trooper Riggs:    Okay.

      Hamal:            It goes too fast.

      Trooper Riggs:    Yeah. It does.[4]

The following exchange occurred at an elapsed time of 1:86:

      Trooper Riggs:    Have you ever been in any trouble for anything?

      Hamal:            No.

      Trooper Riggs:    Nothing illegal in the car or nothing?

      Hamal:            No. No. No.

      Trooper Riggs:    What‘s going to happen is there is going to be a citation
                        for your speed.

      Hamal:            Let me make it please . . . how fast was I going?


      4
        At that point, Trooper Riggs walked away from Hamal and looked at the
windshield of her car. Hamal and Trooper Riggs briefly discussed the location of
Hamal‘s vehicle registration sticker. Trooper Riggs shone his flashlight into the
interior of Hamal‘s vehicle as he walked back toward Hamal.


                                       15
      Trooper Riggs:    79.

      Hamal:            79, oh gosh. Oh my gosh, I am so sorry.

      Trooper Riggs:    Alright, just wait here. I will be right with you.

      Hamal:            Okay. Can I wait in my car?

      Trooper Riggs:    No, just wait right here just a second.

      Hamal:            Okay.

      Trooper Riggs then returned to his squad car and called dispatch to check

Hamal‘s driver‘s license for outstanding warrants and her criminal history. At an

elapsed time of 3:92, he learned that Hamal had nine prior arrests for possession

of controlled substances, prostitution, and probation revocation and that Hamal‘s

most recent arrest was seven months prior, in February 2008, for possession of a

controlled substance. Trooper Riggs said to himself in his squad car, ―She said

she‘s never been arrested. Real nervous.‖ Trooper Riggs returned to Hamal,

where the following exchange took place:

      Trooper Riggs:    Just step back with me. My ticket printer is
                        running kind of slow. Come back here and talk to
                        me.

      Hamal:            Yes, sir.

      Trooper Riggs:    There‘s another part of my job out here; we look
                        for illegal weapons, drugs, marihuana. Do you
                        have any of that in that vehicle?

      Hamal:            I don‘t have any of that.

      Trooper Riggs:    Would you care if I take a look for those items
                        and search it?



                                        16
      Hamal:            Yes, I do, sir.

      Trooper Riggs:    You do. Okay, hang on just a second. I really am
                        having trouble with my ticket printer here so this is
                        going to take just a minute.

      Trooper Riggs returned to his squad car and called dispatch to request a

canine unit, stating, ―I have one refusing to consent.‖ Corporal Payne responded

that he would be there in about twenty minutes with a canine unit. Trooper Riggs

again said to himself, ―Says she had never been arrested.‖           Trooper Riggs

returned to Hamal, and the following exchange took place at an elapsed time of

11:09:

      Hamal:            I am sorry I was speeding.

      Trooper Riggs:    Well alright here is the deal. I‘ll kill your car while
                        we wait for the canine to come real quick and
                        then I‘ll let you get on your way. Just wait right
                        here for me. Stay right there.

      Hamal:            What is the problem? Did I do something?

      Trooper Riggs:    Well, yeah, you seemed kind of nervous when
                        you got out and then you lied to me.

      Hamal:            What did I lie to you about, sir?

      Trooper Riggs:    You told me that you had never been in trouble
                        and never been arrested.

      Hamal:            No. No. I said that I am not in any trouble right
                        now. I have been arrested. I do have a past, and
                        it was a long time ago. I don‘t . . .

      Trooper Riggs:    Well, if you had told me that, it would have been a
                        little bit different, but . . .




                                          17
      Hamal:            Well, I didn‘t know specifically what you were
                        asking—if I had been in any trouble recently, or
                        twenty years ago, or five years ago. . . . Plus,
                        everybody‘s nervous who gets pulled over by law
                        enforcement, who isn‘t?

      Trooper Riggs:    Well, as soon as that dog gets here, then I‘ll let
                        you get on your way. We‘ll run the dog around it
                        and if everything is good, you‘ll be good to go.

While waiting for the canine unit to arrive, Hamal again asserted that she had

misinterpreted Trooper Riggs‘s question; Trooper Riggs responded that he had

interpreted her answer as her not being honest with him.

      Corporal Payne arrived approximately thirty-two minutes after Hamal‘s

initial stop and about twenty-three minutes after he was dispatched.     Hamal

immediately told Corporal Payne that she had misunderstood Trooper Riggs‘s

question as asking if she was in any trouble and explained that, other than an

arrest in February 2008 that ―was thrown out by the grand jury,‖ she had not

been arrested in twenty years. There was about a nine-minute delay between

Corporal Payne‘s arrival and the beginning of the dog‘s search due to the

discussion between Hamal and Corporal Payne and a pat-down search of

Hamal. The canine began sniffing Hamal‘s car at an elapsed time of 40:98, and

it alerted on the car within seconds.    After searching Hamal‘s car for fifteen

minutes, the officers found a pipe and 4.82 grams of methamphetamine in a

false-bottom spray can and arrested Hamal.

      At trial, Trooper Riggs testified that when he stopped Hamal, he noticed

that her hands were shaking and that she was looking down into a purse or bag


                                        18
as he approached. He explained that after Hamal got out of her car, he did not

notice her shaking anymore; when asked if she was still nervous while standing

and talking to him, he responded that she ―just [stood] real still.‖ Trooper Riggs

testified that he had detained Hamal because she was nervous and lied to him

about her criminal history and that, at the time, he believed that she was possibly

also lying about having something illegal in her car. On cross-examination, he

stated that he did not initially have probable cause to search Hamal‘s vehicle but

that he thought he had a right to call in a canine unit. He said that he knew

nervousness alone was not an indicator of criminal activity; that he did not clarify

his question about Hamal‘s past even though she told him that she had trouble

hearing him and did not understand his question; and that he knew that the

presence of a criminal record was not a factor that supported probable cause to

conduct a search.

                     D. Denial of Motion to Suppress for
                 Lack of Reasonable Suspicion was Not Error

      Hamal does not challenge the lawfulness of Trooper Riggs‘s initial

detention of her for speeding.        She contends, however, that he lacked

reasonable suspicion to continue detaining her for a canine sniff once he

concluded the investigation into speeding.      The only facts that can support

reasonable suspicion for Hamal‘s continued detention are Trooper Riggs‘s

observation that she was nervous when he initially approached her vehicle;

Trooper Riggs‘s discovery of Hamal‘s criminal history after she answered, ―No,‖



                                        19
when asked if she had ―ever been in any trouble for anything‖; and Hamal‘s

criminal history, which included multiple arrests for possession of controlled

substances.

      Hamal‘s nervousness is a factor to consider in determining reasonable

suspicion, see Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000);

Haas v. State, 172 S.W.3d 42, 54 (Tex. App.—Waco 2005, pet. ref‘d), but her

nervousness alone does not support a reasonable suspicion determination, see

Davis, 947 S.W.2d at 248; Sieffert v. State, 290 S.W.3d 478, 485 (Tex. App.—

Amarillo 2009, no pet.). Likewise, Hamal‘s prior arrests cannot be the basis for

reasonable suspicion, see United States v. Jones, 234 F.3d 234, 242 (5th Cir.

2000) (noting that prior arrest alone does not amount to reasonable suspicion),

but, in certain cases, they can be a factor to consider in determining reasonable

suspicion when combined with other factors and especially when those arrests

are drug related.5   See Parker v. State, 297 S.W.3d 803, 811 (Tex. App.—

Eastland 2009, pet. ref‘d) (considering lengthy criminal history, including

numerous drug offenses, as part of totality of circumstances in reasonable

      5
        Although Trooper Riggs testified that he did not consider Hamal‘s criminal
record, reasonable suspicion is an objective standard that disregards any
subjective intent of the officer making the stop and looks solely to whether an
objective basis for the stop exists. See Ford, 158 S.W.3d at 492; Fernandez v.
State, 306 S.W.3d 354, 357 (Tex. App.—Fort Worth 2010, no pet.); State v.
Patterson, 291 S.W.3d 121, 123 (Tex. App.—Amarillo 2009, no pet.) (―[T]he
subjective reasons uttered by the officer to legitimize the stop have no bearing on
the outcome if the totality of the circumstances nonetheless would lead a police
officer to reasonably suspect that crime is afoot.‖) (citing Garcia v. State, 43
S.W.3d 527, 530 (Tex. Crim. App. 2001)).


                                        20
suspicion determination); Coleman v. State, 188 S.W.3d 708, 718–19 (Tex.

App.—Tyler 2005, pet. ref‘d) (same), cert. denied, 549 U.S. 999 (2006); Powell v.

State, 5 S.W.3d 369, 378 (Tex. App.—Texarkana 1999, pet. ref‘d) (same), cert.

denied, 529 U.S. 1116 (2000); see also Morris v. State, No. 07-06-00141-CR,

2006 WL 3193724, at *3 (Tex. App.—Amarillo Nov. 6, 2006, no pet.) (mem. op.,

not designated for publication) (same). And regarding Hamal‘s denial of having

―ever been in any trouble for anything,‖ if Trooper Riggs could have reasonably

interpreted her answer as a denial of having ever been arrested, the fact that

Trooper Riggs discovered that she, in fact, had multiple prior arrests, including

four drug-related arrests, is also a factor to consider in determining reasonable

suspicion. See, e.g., United States v. Copeland, 102 Fed. Appx. 855, 857–58

(5th Cir. 2004) (considering fact that officer discovered that passenger had lied

when asked if he had ever been arrested as support for reasonable suspicion

determination); Coleman, 188 S.W.3d at 718–19 (same); Simpson v. State, 29

S.W.3d 324, 328–29 (Tex. App.—Houston [14th Dist.] 2000, pet. ref‘d) (same);

Powell, 5 S.W.3d at 378 (same); cf. McQuarters v. State, 58 S.W.3d 250, 260

(Tex. App.—Fort Worth 2001, pet. ref‘d) (concluding that officer lacked

reasonable suspicion to detain defendant in order to conduct a canine search

after lawful traffic stop and distinguishing Powell because, at the time of the

McQuarters detention, the officer had dismissed his suspicions related to the

initial traffic stop‘s purposes, had issued two warnings, and ―did not catch

appellant lying or discover any prior drug offenses‖).


                                        21
      Hamal argues that Trooper Riggs‘s questions regarding her past trouble

and whether her car contained anything illegal were ―not question[s]

contemplated by the relevant case law,‖ but a police officer‘s questioning, even

on a subject unrelated to the stop, cannot be the basis for a Fourth Amendment

violation. See Shabazz, 993 F.2d at 436 (―Mere questioning, however, is neither

a search nor a seizure.‖); see also Florida v. Bostick, 501 U.S. 429, 434, 111 S.

Ct. 2382, 2386 (1991) (noting same); St. George v. State, 197 S.W.3d 806, 819

(Tex. App.—Fort Worth 2006) (―‗[D]etention, not questioning, is the evil at which

Terry‘s second prong is aimed.‘‖ (quoting Shabazz, 993 F.2d at 436)), aff’d, 237

S.W.3d 720 (Tex. Crim. App. 2007).        The questioning at issue here did not

extend the duration of the initial, valid stop; the questions were asked less than

two minutes after Trooper Riggs stopped Hamal, during the course of his

investigation of the original purpose of the stop, and prior to informing her that he

was giving her a citation for speeding.       See Shabazz, 993 F.2d at 436–37

(dismissing notion that a police officer‘s comments on an unrelated subject

constitute a per se Fourth Amendment violation and holding as lawful an officer‘s

questioning that did not extend the duration of the initial valid seizure); see also

Edmond v. State, 116 S.W.3d 110, 114 (Tex. App.—Houston [14th Dist.] 2002,

pet. ref‘d) (concluding that questioning about drugs during a traffic stop was

permissible when it did not unreasonably prolong the detention).

      The crux of Hamal‘s suppression issue hinges on whether Trooper Riggs

could have reasonably believed that Hamal was lying about having ever been


                                         22
arrested when she denied having ―ever been in any trouble for anything,‖ even

after she explained that she had misunderstood his question. If Trooper Riggs

did not act reasonably in so believing, her nervousness at the beginning of the

stop and her past criminal history, without more, could not provide the basis for

her continued detention. See Davis, 947 S.W.2d at 248; Parker, 297 S.W.3d at

811; Sieffert, 290 S.W.3d at 485. If, on the other hand, Trooper Riggs was

reasonable in believing that Hamal had understood his question and had lied,

then case law supports the trial court‘s implied finding of reasonable suspicion for

her continued detention based on her nervousness, her lying about her criminal

history, and her lengthy criminal history, which included a very recent drug-

possession arrest and three other drug-possession arrests.6 See Copeland, 102

Fed. Appx. at 857–58 (―Copeland had lied to the officer about his prior

convictions, and thus, the officer was justified in investigating further.‖); Morris,

2006 WL 3193724, at *3 (nervousness, history of multiple drug-related offenses,

and lying about prior arrests supported reasonable suspicion determination);

Coleman, 188 S.W.3d at 718–19 (reasonable suspicion existed based on

suspect‘s prior drug-related arrests, lying about prior arrests, and possession of

      6
        Hamal argues that the reason for the initial detention had concluded when
Trooper Riggs told her that his ticket machine was ―running kind of slow‖; she
asserts that her continued detention after that point was not warranted because it
was not based on reasonable suspicion. But because Trooper Riggs learned of
Hamal‘s criminal history prior to this point, and because we hold that the trial
court did not err by finding that the trooper possessed reasonable suspicion to
continue the detention at that point, this reasonable suspicion provided the basis
for her continued detention. See Mohmed, 977 S.W.2d at 628.


                                         23
small jeweler‘s bags commonly used in drug trafficking); Simpson, 29 S.W.3d at

328–29 (reasonable suspicion existed based on suspect‘s immediate exit from

his vehicle, nervousness, blurted responses to officer‘s questions, and lying

about prior arrests); Powell, 5 S.W.3d at 378 (nervousness, conflicting

information, prior drug offenses, and lying when asked about prior arrests

constituted sufficient facts to support reasonable suspicion).

      Certainly, Trooper Riggs could have asked a clearer question—i.e., ―Have

you ever been arrested before?‖ or ―Do you have a criminal history?‖               And

evidence exists, via the videotape, that Hamal did not understand his question as

asked and thought he was asking if she was currently ―in trouble.‖              But for

purposes of a motion to suppress, we must view the evidence in the light most

favorable to the trial court‘s ruling and give almost total deference to the trial

court‘s rulings on questions of historical fact, even if the trial court‘s determination

of those facts was not based on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez, 195 S.W.3d at 108–09; Johnson, 68

S.W.3d at 652–53; see Garcia-Cantu, 253 S.W.3d at 241. And the relevant

inquiry is the reasonableness of Trooper Riggs‘s belief that Hamal was lying

about her prior arrests. See Madden v. State, 242 S.W.3d 504, 508 n.7 (Tex.

Crim. App. 2007) (noting factual issue was not whether defendant was actually

speeding, but whether officer had reasonable belief that defendant was

speeding). The trial court could have determined, based on the videotape of the

stop and Trooper Riggs‘s testimony, that a reasonable officer would have


                                          24
reasonably believed that Hamal clearly heard the trooper‘s question; on the

videotape of the stop, Hamal did not seek clarification of the question, she

answered almost it immediately, and nothing suggests that she had trouble

hearing anything else the trooper said.         The trial court could have also

determined from the video and testimony that a reasonable officer would have

reasonably believed that Hamal understood the trooper‘s question as asking if

she had ever been arrested and that she denied it.      As we will explain in more

detail in addressing Hamal‘s second and third points below, the record does

contain evidence to dispute the trooper‘s belief that she was lying, but under the

applicable standard of review and affording almost total deference to the trial

court‘s determination of historical facts, the evidence does not conclusively

establish that a reasonable officer would have concluded that Hamal

misunderstood or did not hear the question asked. See Amador, 221 S.W.3d at

673; Montanez, 195 S.W.3d at 108–09; Johnson, 68 S.W.3d at 652–53; see also

Garcia-Cantu, 253 S.W.3d at 241.

      Consequently, we hold that the trial court did not err by finding that Trooper

Riggs had reasonable suspicion to continue detaining Hamal based on his

observation of her nervousness when stopped, his belief that she had

misrepresented that she had never been arrested when, in fact, she had nine

prior arrests, including four drug-related arrests, and her lengthy criminal history,




                                         25
including several (and one very recent) drug-related arrests.7 See Morris, 2006

WL 3193724, at *3; Coleman, 188 S.W.3d at 718–19; Simpson, 29 S.W.3d at

329; Powell, 5 S.W.3d at 378–79. Because the trial court did not err by denying

Hamal‘s motion to suppress on this basis, we overrule the remainder of her first

point.

                          V. REQUESTED JURY INSTRUCTIONS

         Hamal consolidates her second and third points, stating that the trial court

erred by failing to include her fourth and sixth requested jury instructions and an

article 38.23 instruction in the jury charge. She asserts that she was entitled to

these instructions because the evidence showed that Trooper Riggs thought she

had lied about her criminal history but that she thought she had truthfully

answered the question as she had heard it, thus creating a disputed issue of fact.

                               A. Standard of Review

         Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v.

         7
        Hamal also argues that Trooper Riggs‘s ―inarticulate hunch that [she] ‗may
be hiding something‘‖ was insufficient to support reasonable suspicion that she
was engaged in illegal activity. However, unlike in the cases cited by Hamal, see
Davis, 947 S.W.2d at 245; Sieffert, 290 S.W.3d at 487 (driving in high crime area
and nervousness supported nothing more than hunch); Wolf v. State, 137
S.W.3d 797, 804 (Tex. App.—Waco 2004, no pet.) (nervousness and being
overly cooperative did not support inference of illegal activity), when the evidence
in this case is viewed in an objective fashion, Hamal‘s nervousness, her lying
about her criminal history, and the revelation that she had four drug-related
arrests, one of which occurred just seven months prior, supplied the articulable
facts to support reasonable suspicion that she may be hiding drugs. See Morris,
2006 WL 3193724, at *3; Powell, 5 S.W.3d at 378.


                                          26
State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).              Initially, we must

determine whether error occurred, and if it did, we must then evaluate whether

sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at

732.

                      B. Law on Article 38.23 Instructions

       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, 242 S.W.3d at 510. 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 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


                                        27
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)).

   C. Disputed Issue of Material Fact Warranted Article 38.23 Instruction

      In this case, whether a disputed issue of fact existed warranting an article

38.23 instruction centers around Trooper Riggs‘s question, ―Have you ever been

in any trouble for anything?‖ and whether he was reasonable in believing that

Hamal correctly heard his question and understood it as asking whether she had

ever been arrested. As we stated above, the trooper‘s question was not a model

of clarity. Not only is it vaguely and broadly worded—using the term ―in trouble‖

instead of ―arrested‖ or ―convicted‖—but the videotape of the stop and Trooper

Riggs‘s testimony establish that Hamal disputed that she understood what he

was asking her. When Trooper Riggs informed Hamal that she had lied about

having ―never been in trouble and never been arrested,‖ she immediately

responded, ―No. No. I said that I am not in any trouble right now. I have been

arrested.‖ She further explained, ―Well, I didn‘t know specifically what you were

asking—if I had been in any trouble recently, or twenty years ago, or five years

ago.‖ And she immediately told Corporal Payne upon his arrival that she had


                                       28
misunderstood Trooper Riggs‘s question as asking if she was currently in trouble.

On the other hand, the videotape shows Trooper Riggs telling her that he thought

she was lying about having ever been arrested, and he also testified at trial that

he thought she was lying: ―The question was clearly asked, and I just felt like

she was avoiding the question.‖ Trooper Riggs further testified that Hamal had

told him at the scene that she misunderstood his question.

      In Madden, the court of criminal appeals discussed the circumstances in

which an article 38.23 instruction is and is not required. See 242 S.W.3d at 511–

14.   The court held that a disputed issue of fact existed about whether the

appellant was speeding—the officer‘s reason for stopping the appellant—

because the videotape of the stop showed the appellant claiming that he had not

been speeding. Id. at 508, 511. Regarding this disputed issue of fact, the court

of criminal appeals approved of an instruction that informed the jurors that no

evidence obtained in violation of the constitutions or laws of the United States or

Texas shall be considered and continued by stating:

      You are further instructed that our law permits the stop and
      detention of a motorist by a peace officer without a warrant when the
      officer has reasonable suspicion to believe that a traffic offense has
      been committed.

            ....

      . . . [I]f you find from the evidence that, on the occasion in question,
      Officer Lily did have a reasonable suspicion to believe that
      [appellant] was driving at a speed greater than 55 miles per hour on
      a portion of the highway with a posted speed limit of 55 miles per
      hour immediately prior to the stop, then you may consider the
      evidence obtained by the officer as a result of the detention.


                                        29
Id. at 508 n.7. The court of criminal appeals found this instruction ―admirable‖

because it directed the ―jury‘s attention to the one historical fact—Officer Lily‘s

reasonable belief or ‗suspicion‘ that appellant was going faster than 55 m.p.h.—in

dispute and tells the jury to decide this fact.‖ Id.

      In this case, the factual issue for the jury is not whether Hamal

misunderstood Trooper Riggs‘s question as asking whether she was currently in

trouble; rather, the issue is whether Trooper Riggs was reasonable in believing—

after Hamal answered his question and also after she informed him that she had

misunderstood the question—that Hamal had heard and understood what he was

asking and had lied about having ever been arrested. See id. (―Even police

officers may be mistaken about an [sic] historical fact such as ―speeding,‖ as long

as that mistake was not unreasonable.‖).          We believe this is similar to the

disputed issue of fact about whether the appellant was speeding in Madden. See

id. at 511.   The videotape of the stop, as well as Trooper Riggs‘s testimony,

raised this issue of fact, and the evidence on that fact was affirmatively

contested.8 See id.

      8
       The State argues that no evidence was presented at trial that Hamal
misunderstood the question to raise a disputed issue of fact—―[t]here was a
dispute as to [Hamal]‘s interpretation of the question only at the scene and not in
any evidence presented at trial.‖ [Emphasis added.] But the videotape of the
stop was admitted at trial and played for the jury. Both the videotape of the stop
and Trooper Riggs‘s testimony raised the disputed issue of fact. See id. at 513
(explaining that cross-examiner‘s questions do not create conflicts in the
evidence but witness‘s answers to those questions might, and relying on
videotape of stop as creating an issue of fact).


                                          30
      Furthermore, the contested fact issue—whether Trooper Riggs reasonably

believed that Hamal had lied to him about her prior arrests—was material to the

lawfulness of the continued detention. See id. at 510–11. As we stated above in

our suppression analysis, Hamal‘s nervousness at the beginning of the stop and

her past criminal history, without more, could not provide the basis for her

continued detention, and consequently, Trooper Riggs‘s reasonable belief that

she was lying about her prior arrests was a necessary fact as part of the totality

of the circumstances to support a reasonable suspicion determination.          See

Jones, 234 F.3d at 242; Davis, 947 S.W.2d at 248; Parker, 297 S.W.3d at 811;

Sieffert, 290 S.W.3d at 485. Had the jury believed the contrary evidence—that

Hamal had misunderstood Trooper Riggs‘s question and had not lied to him

about her prior arrests—and believed that Trooper Riggs was not credible in his

testimony—that he thought Hamal was lying, even after she explained to him that

she had misunderstood his question—then the continued detention would not

have been justified. See Reynolds v. State, 848 S.W.2d 148, 148–49 (Tex. Crim.

App. 1993) (―[A]lthough a conclusion that the officer was mistaken would not

affect the legitimacy of his stopping appellant, a conclusion that [the officer] was

lying would.‖).

      Consequently, because the evidence at trial showed a factual dispute as to

whether Trooper Riggs‘s belief that Hamal had understood his question and was

lying about having been arrested in the past was reasonable, and because this

factual dispute was material to the determination of reasonable suspicion to


                                        31
continue detaining Hamal for a canine sniff, we hold that she was entitled to a

jury instruction on article 38.23 and that the trial court erred by denying her

request for that instruction. See Tex. Code Crim. Proc. Ann. art. 38.23; Madden,

242 S.W.3d at 513.

                                      D. Harm

      Having found error, we must now determine whether Hamal was harmed

by the trial court‘s failure to include an article 38.23 instruction in the jury charge.

Hamal objected to the charge and provided the trial court with several proposed

charges, the fourth and sixth of which are relevant here. Her fourth proposed

charge begins by restating the first paragraph of article 38.23(a), but the

remainder of the proposed charge discusses probable cause and does not set

out the factual issue for the jury to decide. See Tex. Code Crim. Proc. Ann. art.

38.23(a); Madden, 242 S.W.3d at 508 n.7; see also Holmes v. State, 248 S.W.3d

194, 199–200 (Tex. Crim. App. 2008) (explaining that if contested fact issue

exists, jury should be instructed about the conflict considering the specific

historical fact that is material to the legality of obtaining the evidence). Hamal‘s

sixth proposed charge instructs that the factual dispute is

      whether the accused intentionally made a false response to Officer
      Payne‘s[9] question, ―Have you ever been in trouble[.]‖ . . .

            Now therefore, bearing in mind the foregoing instruction, if you
      find from the evidence beyond a reasonable doubt that the

      9
      Hamal points out on appeal that the jury instruction incorrectly stated that
Corporal Payne, rather than Trooper Riggs, asked the question.


                                          32
      accused‘s response to the question, ―Have you ever been in
      trouble[,]‖ was an intentional attempt by the accused to mislead the
      officer as to her prior criminal record so as to raise a reasonable
      suspicion of contraband being in the accused‘s vehicle, then you
      may consider the evidence obtained by the search of accused‘s
      vehicle.

The proposed instruction did not include the legal background for the issue, and

it did not correctly set out the factual issue for the jury to decide. See Tex. Code

Crim. Proc. Ann. art. 38.23; Riley v. State, 830 S.W.2d 584, 586–87 (Tex. Crim.

App. 1992) (―[Article] 36.14 requires the judge to provide the jury with both an

abstract statement of the law and an application of that abstract statement to the

evidence in the case.‖).     Consequently, Hamal failed to present a proper

requested instruction.

      When a defendant fails to present a proper requested instruction, any error

in the charge ―should be reviewed only for ‗egregious harm‘ under Almanza.‖

Madden, 242 S.W.3d at 513; see Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh=g); see also Tex. Code Crim. Proc. Ann. art. 36.19

(West 2006); Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Hutch

v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Egregious harm is the

type and level of harm that affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Allen, 253

S.W.3d at 264 & n.15; Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex. Crim.

App. 2006); Almanza, 686 S.W.2d at 172.




                                        33
      In making an egregious harm determination, Athe 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.@   Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d at

172B74.    The purpose of this review is to illuminate the actual, not just

theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious harm

is a difficult standard that must be determined on a case-by-case basis. Ellison

v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch, 922 S.W.2d at 171.

      Here, regarding the jury instructions, because the jury was not provided an

article 38.23 instruction, it was allowed to consider evidence obtained as a result

of Hamal‘s continued detention without first determining a fact issue related to

that detention.   If properly instructed, the jury would have been required to

disregard the evidence obtained from the continued detention if it believed that

Trooper Riggs was not reasonable in believing that Hamal correctly heard his

question and interpreted it as asking whether she had ever been arrested. See

Hutch, 922 S.W.2d at 172–73; Reynolds, 848 S.W.2d at 149.

      Regarding the state of the evidence, whether Hamal understood Trooper

Riggs‘s question and lied about having been arrested was a contested issue at

trial. And as we have stated, if Trooper Riggs was unreasonable in believing that

Hamal had lied about her prior arrests, then he could not have had reasonable




                                        34
suspicion to continue the detention. See Davis, 947 S.W.2d at 248; Parker, 297

S.W.3d at 811; Sieffert, 290 S.W.3d at 485.

      Turning to the arguments of counsel, the State argued during opening

arguments that Trooper Riggs‘s question was clear and simple, allowing him to

determine that Hamal had lied to him; defense counsel argued in both opening

and closing arguments that the question asked was ambiguous and open-ended

and that Hamal did not understand it.

      Given this record, we conclude that the trial court‘s failure to provide an

article 38.23 instruction created such harm that Hamal did not have a fair and

impartial trial. See Almanza, 686 S.W.2d at 171; see also Tex. Code Crim. Proc.

Ann. art. 36.19; Allen, 253 S.W.3d at 264; Hutch, 922 S.W.2d at 171. We sustain

Hamal‘s second and third points.

                                 VI. CONCLUSION

      Having sustained Hamal‘s second and third points, we reverse the trial

court‘s judgment and remand to the trial court for a new trial.



                                                    SUE WALKER
                                                    JUSTICE


PANEL: GARDNER, WALKER, and MCCOY, JJ.

MCCOY, J. concurs without opinion.

PUBLISH

DELIVERED: September 22, 2011


                                         35
