                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-168-CR


DARWIN ANTHONY KING                                                 APPELLANT
A/K/A DARWIN A. KING
                                              V.

THE STATE OF TEXAS                                                       STATE

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

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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

                          MEMORANDUM OPINION 1

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

      A jury convicted Appellant Darwin Anthony King a/k/a Darwin A. King of

possession of a controlled substance in an amount less than one gram, and the

trial court sentenced him to ten years’ confinement. In a single point, King

argues that the jury erred by finding that the police had reasonable suspicion to




      1
          … See T EX. R. A PP. P. 47.4.
stop King for questioning regarding their investigation of an unauthorized use

of a motor vehicle case. We will affirm.

      On September 21, 2006, Officers Gilbert and Holman were patrolling an

area of East Fort Worth when they saw a green truck that had been reported

stolen.   They activated their overhead lights and pursued the truck, which

pulled into the driveway of a residence and onto the front yard. The driver fled

into the neighborhood upon exiting the truck.

      Officer Gilbert observed that the individual was a black male who “was

approximately 5'7" to 5'10" [tall], not too big of a guy, maybe 170 pounds.

I noticed a white top and some kind of dark shorts.” Officer Holman got a

“quick” look at the individual, observing that he was a black male, about 5'7"

or 5'8" tall, not “extremely tall or extremely short,” and wearing a white shirt

and dark shorts. Officer Holman chased the fleeing individual but lost him.

Officer Holman scratched his arms in the process of scaling several chain-link

fences during the pursuit, and he opined that the fleeing individual, who officers

later discovered might be DeWayne Williams, may have scratches on his arms

or torn clothes too.

      Having obtained information from the passenger of the green truck about

W illiams, Officers Gilbert and Holman visited a residence and learned that




                                        2
Williams often hung out at a nearby convenience store. The officers visited the

convenience store but did not find Williams there.

      As it was close to 10:00 p.m. and the end of their shift, the officers

decided to return to the police station. While driving, they observed a man a

block or two from the convenience store walking alone down the street who

resembled the description of the individual who had evaded them earlier; the

black man was about 5'7" tall, weighed about 170 pounds, and was wearing

a white shirt and dark shorts. Without their overhead lights or siren on, the

officers passed him once, made a U-turn, passed him again, made another U-

turn, and stopped about fifteen to twenty feet from him in order to detain him

briefly to determine if he was the same person they had chased earlier. When

Officer Holman opened his door, the man, identified at trial as King, stopped,

turned in the other direction, and ran. After a brief search, officers located King

lying down in a briar patch in a vacant lot. Officers handcuffed King and found

a heroine capsule in his ear and a handgun that King had discarded in another

location at the beginning of the chase. Officer Gilbert testified at trial that

although King was ultimately not the same person whom he and Officer Holman

had   pursued   earlier   in   connection       with   the   stolen   green   truck,   he

thought—factoring everything in his knowledge at the time regarding the truck

case—that King was a possible suspect in the stolen truck matter.

                                            3
      After all of the evidence had been presented, the trial court denied King’s

motion to suppress, which it had carried with the trial at King’s request. The

jury charge, however, instructed the jury that it was to disregard the evidence

found if it determined that Officers Gilbert and Holman did not have a

reasonable suspicion that King was or had been engaged in criminal activity,

namely unauthorized use of a motor vehicle. The instruction reads as follows:

             You are instructed that no evidence obtained by an officer in
      violation of any provisions of the Constitution or laws of the State
      of Texas, or the Constitution or laws of the United States of
      America, shall be admitted in evidence against the accused in the
      trial of any criminal case. A person is arrested when he has been
      actually placed under restraint or taken into custody by an officer
      or person executing a warrant of arrest, or by an officer or person
      arresting without a warrant. The reason for a person’s arrest does
      not have to be the same as the reasonable suspicion that justified
      their initial detention by the police.

             You are instructed that the investigative detention of a
      person by the police must be justified at its inception by reasonable
      suspicion. “Reasonable suspicion” exists when, based on the
      totality of the circumstances, the officer has specific, articulable
      facts that when combined with rational inferences arising from
      those facts, would lead him to reasonably conclude that a particular
      person is, has been, or soon will be engaged in criminal activity.

            Now bearing in mind these instructions, if you find from the
      evidence beyond a reasonable doubt that on the occasion in
      question either Lt. Frederick Gilbert or Sgt. Jeffery Holman had a
      reasonable suspicion that Darwin Anthony King was or had been
      engaged in criminal activity to wit: unauthorized use of a motor
      vehicle or theft of a vehicle, then such detention would be legal
      and you will continue your deliberations.


                                       4
      If you do not so find or if you have a reasonable doubt thereof,
      then such detention would be illegal and in that event the jury will
      disregard the evidence found and you will not consider such
      evidence for any purpose whatsoever and you will return a verdict
      of not guilty.

      In his sole point, King challenges the jury’s implied finding of reasonable

suspicion to support his detention under the article 38.23 2 jury charge, arguing

that “[t]he jury erred in finding that the police had reasonable suspicion to stop

[him] for questioning regarding an unauthorized use of a motor vehicle case.”

The State argues that the jury’s implied finding was proper because no Fourth

Amendment violation occurred, but it initially contends that we should dispose

of King’s argument without conducting a reasonable suspicion analysis because

he is contesting the sufficiency of the evidence supporting the jury’s implied

finding under article 38.23(a) that the officers had reasonable suspicion to

detain him, which is an argument the validity of which the court of criminal

appeals has specifically rejected. We agree with the State.

      An article 38.23(a) instruction should be included in the charge only “if

there is a factual dispute as to how the evidence was obtained.” Hanks v.

State, 137 S.W.3d 668, 671 (Tex. Crim. App. 2004). A factual sufficiency

review is only appropriate to address the sufficiency of the State’s proof of the




      2
          … See T EX. C ODE C RIM. P ROC. A NN. art. 38.23 (Vernon 2005).

                                          5
elements of the charged offense. Id. at 672. Such a review is not appropriate

as to the admissibility of evidence when such a question is submitted to the

jury pursuant to article 38.23(a); resolution by the fact-finder of an article

38.23(a) fact issue affects only the jury’s consideration of evidence in

determining guilt. See id.; Verhagen v. State, No. 05-05-00078-CR, 2006 WL

349499, at *2 (Tex. App.—Dallas Feb. 16, 2006, pet. ref’d) (not designated

for publication). Thus, a factual sufficiency review is only appropriate regarding

the State’s proof of the elements of the offense, not the jury’s implied finding

of facts supporting reasonable suspicion.      Burmeister v. State, No. 08-06-

00218-CR, 2008 WL 274824, at *2 (Tex. App.—El Paso Jan. 31, 2008, no

pet.) (not designated for publication); see also Hanks, 137 S.W.3d at 672.

Moreover, the jury instruction concerning the legality of a detention should not

be used to measure the legal sufficiency of the evidence. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997).

      Here, King is contesting the sufficiency of the evidence to support the

jury’s implied finding that Officers Gilbert and Holman had reasonable suspicion

to detain him in order to investigate his involvement or noninvolvement in the

unauthorized use of a motor vehicle matter. Indeed, he argues that “[t]he jury

got it wrong and this court should correct their error.” The implied finding that

King contests is derived from the trial court’s submission of the article 38.23(a)

                                        6
instruction regarding the admissibility of the evidence. But the presence or

absence of reasonable suspicion is not an element of possession of a controlled

substance of less than one gram, the offense that King was charged with and

convicted of. See T EX. H EALTH & S AFETY C ODE A NN.§ 481.102(2) (Vernon Supp.

2007), § 481.115(b) (Vernon 2003); Burmeister, 2008 WL 274824, at *2.

King does not challenge the trial court’s ruling denying his motion to suppress.

Consequently, because King challenges the sufficiency of the jury’s implied

finding of facts supporting reasonable suspicion and not an element of the

offense of which he was convicted, we decline to inquire into the sufficiency

of the jury’s implied finding and overrule his sole point. Accordingly, we affirm

the trial court’s judgment.




                                           PER CURIAM




PANEL F: HOLMAN, J.; CAYCE, C.J.; and LIVINGSTON, J.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 5, 2008




                                       7
