                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION

                                         No. 04-18-00302-CR

                                        Nicanor C. SANCHEZ,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016CR7395
                         Honorable Catherine Torres-Stahl, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: April 17, 2019

AFFIRMED

           A Bexar County jury found Appellant Nicanor Sanchez guilty of one count of driving while

intoxicated and one count of driving while intoxicated with a child passenger. The trial court

assessed punishment at five-years’ confinement in the Institutional Division of the Texas

Department of Criminal Justice and a $1,500.00 fine. The trial court suspended and probated the

confinement for a period seven years and placed Sanchez on community supervision.
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       On appeal, Sanchez contends the trial court erred in failing to grant his motion to suppress

because the officer did not have reasonable suspicion to initiate the traffic stop and the trial court

erred in denying his requested jury instruction. We affirm the trial court’s judgment.

                           FACTUAL AND PROCEDURAL BACKGROUND

       On February 8, 2016, after drinking a twenty-four-ounce beer, Sanchez drove from a

convenience store on Commerce Street to his residence. Sanchez testified that he and his girlfriend

were at the convenience store when his girlfriend became sick and started throwing up in the truck;

as a result, Sanchez had to drive the truck. At that time, Sanchez acknowledges he was taking

approximately twelve or thirteen medications.

       Sanchez was traveling northbound on NW 24th Street as he approached the intersection of

24th Street and Poplar Street. Sanchez moved into the left-turn-only lane, but did not use his

signal. Across the intersection, San Antonio Police Sergeant Brian Sullivan witnessed Sanchez

change lanes without signaling and then turn left onto Poplar without signaling.

       Sergeant Sullivan turned right onto Poplar and followed a very slow-moving Sanchez for

approximately one minute. During that time, Sergeant Sullivan witnessed Sanchez cross Poplar’s

midline and saw Sanchez drive on the left side of the roadway on several occasions. The officer

turned on his emergency lights and Sanchez pulled into his driveway.

       When Sergeant Sullivan approached the door of Sanchez’s vehicle, the officer immediately

noticed the smell of alcohol, Sanchez’s words were slurred, and his eyes were bloodshot. Sanchez

acknowledged having been drinking. Sanchez agreed to perform the field sobriety tests, but

contends he told the officer that he had recently suffered a stroke and that he needed his cane which

was on the patio. Sanchez contends the officer refused to bring him the cane. Sanchez further

contends that given his medical condition, he would not have been able to do the one-leg stand,

regardless of whether he had consumed the twenty-four-ounce can of beer. Based on Sanchez’s


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inability to perform field sobriety tests, Sanchez was arrested for driving while intoxicated.

Sergeant Sullivan requested a search warrant for a blood specimen; the test results ultimately

revealed a blood alcohol content of 0.157.

        Sanchez’s case was called for trial on January 11, 2018. After the trial court denied the

motion to suppress the matter was heard before a Bexar County jury. Sanchez stipulated to two

prior DWI convictions and the jury found Sanchez guilty of driving while intoxicated and one

count of driving while intoxicated with a child passenger. The trial court assessed punishment at

five-years’ confinement in the Institutional Division of the Texas Department of Criminal Justice

and a $1,500.00 fine. The trial court suspended and probated the confinement for a period of seven

years and placed Sanchez on community supervision.

        On appeal, Sanchez contends the trial court erred in failing to grant his motion to suppress

because the officer did not have reasonable suspicion to initiate the traffic stop and the trial court

erred in denying his requested article 38.23 jury instruction.

                                       MOTION TO SUPPRESS

A.      Arguments of the Parties

        Sanchez contends that because the officer did not have reasonable suspicion to initiate the

traffic stop, the trial court erred in failing to suppress the evidence obtained following the stop.

The State concedes Sanchez was arrested without a warrant, but counters Sergeant Sullivan

witnessed Sanchez commit two traffic offenses and therefore Sergeant Sullivan possessed

reasonable suspicion to initiate a traffic stop.

B.      Standard of Review

        In a motion to suppress evidence based on a Fourth Amendment violation, “the defendant

bears the initial burden of producing evidence rebutting the proper police conduct presumption. A

defendant satisfies this burden by establishing that a search or seizure occurred without a warrant.”


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Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) (footnote omitted); accord State v.

Hneidy, 510 S.W.3d 458, 462 (Tex. App.—San Antonio 2013, pet. ref’d). “Once the defendant

has made this showing, the burden of proof shifts to the State where it is required to establish that

the search was conducted pursuant to a warrant or was reasonable.” Ford, 158 S.W.3d at 492

(citing Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002)); accord Hneidy, 510 S.W.3d

at 462. We must, therefore, determine whether the State established that Sergeant Sullivan’s traffic

stop of Sanchez was reasonable.

       Reasonable suspicion is determined under the totality of the circumstances. Ford, 158

S.W.2d at 493; Hneidy, 510 S.W.3d at 463. An appellate court utilizes a bifurcated standard of

review affording “almost total deference to the trial court’s determination of historical facts [but]

review[ing] de novo the trial court’s application of law to facts not turning on credibility and

demeanor.” Ford, 158 S.W.3d at 493 (citing Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim.

App. 1997)); Hneidy, 510 S.W.3d at 463. “Whether there was reasonable suspicion to detain

[Sanchez] is not a function of [Sergeant Sullivan’s] demeanor or credibility, but of the legal

significance of the essentially uncontested facts. The ultimate question of whether [Sergeant

Sullivan] was indeed ‘justified in stopping’ [Sanchez’s vehicle], we review de novo.” Leming v.

State, 493 S.W.3d 552, 562 (Tex. Crim. App. 2016) (footnote omitted) (quoting Amador v. State,

221 S.W.3d 666, 673 (Tex. Crim. App. 2007)). If the trial court’s ruling “is correct under any

applicable theory of law,” it must be sustained. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim.

App. 2018).

C.     Reasonable Suspicion

       The Fourth Amendment protects against unreasonable searches without a warrant. U.S.

CONST. amend. IV.        “[N]ecessarily swift police action predicated upon the on-the-spot

observations of the officer . . . must be tested by the Fourth Amendment’s general proscription


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against unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 20 (1968); see also

Ramirez-Tamayo v. State, 537 S.W.3d 29, 36–37 (Tex. Crim. App. 2017). “[T]here is ‘no ready

test for determining reasonableness other than by balancing the need to search . . . against the

invasion which the search . . . entails.’” Terry, 392 U.S. at 21 (quoting Camara v. Mun. Court,

387 U.S. 523, 534–35, 536–37 (1967)).

        Here, the only question is whether Sergeant Sullivan had “specific, articulable facts that,

when combined with rational inferences therefrom, lead him to reasonably conclude” that Sanchez

was engaged, or about to be engaged, in criminal activity. Arguellez v. State, 409 S.W.3d 657,

663 (Tex. Crim. App. 2013) (citing Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007));

see also Hneidy, 510 S.W.3d at 462–63 (quoting Ford, 158 S.W.3d at 492) (assessing

reasonableness of police conduct under “an objective standard that disregards the officer’s

subjective motive or intent and ‘looks solely to whether an objective basis for the stop exists’ based

on the totality of the circumstances”).

D.      Vehicle Stops Pursuant to Traffic Violations

        “In the context of a traffic stop, police officers are justified in stopping a vehicle when the

officers have reasonable suspicion to believe that a traffic violation has occurred.” Lerma, 543

S.W.3d at 190 (citing Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014)); see TEX.

CODE CRIM. PROC. ANN. art. 14.01(b) (“A peace officer may arrest an offender without a warrant

for any offense committed in his presence or within his view.”); TEX. TRANSP. CODE ANN.

§ 543.001 (“Any peace officer may arrest without warrant a person found committing a violation

of this subtitle.”).

        Sergeant Sullivan testified he witnessed Sanchez commit two distinct traffic violations: (1)

failure to drive on the right side of the road in violation of section 545.051(a)(2); and (2) failure to

signal lane change in violation of section 545.104(a) of the Texas Transportation Code. See TEX.


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TRANSP. CODE ANN. § 545.051(a)(2) (“An operator on a roadway of sufficient width shall drive

on the right half of the roadway, unless . . . an obstruction necessitates moving the vehicle left of

the center of the roadway.”); id. § 545.104 (“(a) An operator shall use the signal authorized by

Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.; (b)

An operator intending to turn a vehicle right or left shall signal continuously for not less than the

last 100 feet of movement of the vehicle before the turn.”).

E.     Motion to Suppress Hearing

       The testimony during the motion to suppress hearing was limited to two witnesses,

Sergeant Sullivan and Nicanor Sanchez, and the dashcam recording from Sergeant Sullivan’s

patrol vehicle.

       1.         Sergeant Brian Sullivan

       On February 8, 2016, shortly after midnight, San Antonio Police Sergeant Brian Sullivan

was traveling southbound on NW 24th Street when he witnessed two vehicles traveling northbound

on NW 24th Street. Sergeant Sullivan testified that “[o]ne of the vehicles changed into the left

turn lane without signaling.”      After the light changed, and the left turn traffic signal was

illuminated, the same vehicle proceeded to turn left, heading westbound on Poplar Street, without

signaling—a violation of section 545.104(a).

       Sergeant Sullivan watched the events from across the intersection, while waiting at a traffic

light, facing southbound. Intending to conduct a traffic stop, Sergeant Sullivan testified that he

“looked to make sure there was no traffic—coming southbound on 24th Street in the right lane and

I turned to follow [the vehicle].” The officer described Sanchez’s vehicle as “going very slow,

very slow down the street and also at several points, crossed over the midline of the roadway onto

the other side of the road.” Although the road did not have an actual line painted down the middle

of the roadway, Sergeant Sullivan testified the roadway was not a residential roadway and a driver


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was required to stay to the right of the road. At that point, after having observed the vehicle, the

officer conducted a traffic stop.

       A recording of the traffic stop, recorded from the dashcam recorder of Sergeant Sullivan’s

patrol vehicle, was admitted without objection.

       During cross-examination, trial counsel asked several questions regarding the officer’s

failure to initiate a stop immediately after witnessing Sanchez change lanes without signaling.

Sergeant Sullivan explained, “[m]y intention was to conduct a traffic stop after observing for . . .

a few moments.”

       Trial counsel stressed that because the roadway did not actually contain a painted center

line, it was impossible to determine when, or if, the vehicle crossed the center line. Trial counsel

requested the officer point out each time Sanchez “crossed over the center line of the roadway and

got onto the opposite lane of traffic.” Sergeant Sullivan explained it is a question of the “midline”

of the roadway and the pavement serves as the boundaries. A little past the intersection of 27th

Street and Poplar, the recording depicts Sanchez driving on the left side of the Poplar roadway.

Sergeant Sullivan testified Sanchez remained on the left side of the roadway for approximately

forty seconds; and, although he did not impede any motorists or hit any vehicles, Sanchez did hit

a trash can as he pulled his vehicle into his driveway.

       Throughout his cross-examination, trial counsel questioned Sergeant Sullivan’s failure to

initiate a stop of Sanchez’s vehicle immediately after Sergeant Sullivan allegedly witnessed

Sanchez turn left on Poplar without signaling. Sergeant Sullivan explained, “I wanted to observe

the vehicle and see what the driving factors were, if that was just the only violation or if there was

something else going on.” He further opined that officers possess discretion; and, if he had not

seen any additional dangerous behavior, he would have had the discretion to decide not to stop the




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vehicle. “You have to look at the whole circumstance, what’s going on, what he’s doing, what

I’m doing, where we’re at, the time of night, the traffic around you.”

        2.     Nicanor C. Sanchez, Jr.

        After introducing himself, trial counsel asked Sanchez to characterize the road conditions

on Poplar Street.

        It’s not a straight street and there’s a lot of potholes like indicated on that picture
        right there. So the edges of the street by the curb, they go down so if you get too
        close to the curb, it pulls your car. They’re bad. They’re not great condition, but
        they’re bad conditions.

After watching the video, Sanchez acknowledged he drove a “little towards the middle of the lane.”

However, Sanchez explained his actions were an attempt to avoid the potholes in the roadway.

Where Sergeant Sullivan alleged Sanchez was wrongfully on the left side of the roadway, Sanchez

testified the road curved; and, if he had not veered to the left, his vehicle would have struck the

curb.

        During cross-examination, Sanchez could not remember whether he used his turn signal

on the night in question. He acknowledged the video was not very clear, and at the points he could

see his vehicle clearly, he did not “see a blinker flashing.”

        3.     Trial Court’s Findings of Fact and Conclusions of Law

        The trial court denied Sanchez’s motion to suppress the evidence. In a signed order on

November 6, 2018, the trial court made the following relevant findings of fact and conclusions of

law:

   •    Sergeant Sullivan witnessed Sanchez change lanes without signaling and make a
        left turn without signaling.
   •    The dash-cam video from Sergeant Sullivan’s patrol vehicle shows Sanchez’s
        vehicle turning without using its turn signal and cross the middle of the road.
   •    Sanchez’s argument that a one-minute delay between the initial traffic violation and
        the traffic stop rendered the traffic stop illegal was meritless.



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     •   The evidence obtained as a result of the traffic stop was admissible under both the
         Texas and United States Constitutions and under 38.23 of the Texas Code of
         Criminal Procedure.
     •   Having found the defendant violated section 545.104 of the Texas Transportation
         Code, the officer had reasonable suspicion to stop the vehicle.

E.       Analysis

         We turn first to Sergeant Sullivan’s testimony that Sanchez turned left onto Poplar in

violation of section 545.104(b). See TEX. TRANSP. CODE ANN. § 545.104.

         The testimony is undisputed that when Sanchez turned left, from the northbound turn-lane

of NW 24th Street headed westbound onto Poplar Street, he did not use his signal as required by

section 545.104(a) and did not use his signal 100 feet before the intersection of NW 24th Street

and Poplar Street as required by section 545.104(b). See TEX. TRANSP. CODE ANN. § 545.104. Even

considering Sanchez’s argument that subsection (b) is not applicable because the length of the turn-

only lane is less than 100 feet, Sanchez fails to recognize Sanchez’s testimony conceded the violation

of subsection (a) when his vehicle made the turn without signaling. At this point, the only question is

whether Sergeant Sullivan had reasonable suspicion to initiate a stop of Sanchez based on a violation

of the Transportation Code.

         The trial court’s findings of fact support that on February 8, 2016, Sanchez approached the

light from NW 24th Street and made a left turn onto Poplar without signaling. Sergeant Sullivan

testified he witnessed Sanchez approach the intersection and make the left turn—without using his

turn signal. The dashcam recording supports the officer’s testimony and Sanchez testified he did

not remember turning his turn-signal on and he could not see his turn-signal on in the dashcam

recording. Section 545.104 provides the operator shall use a turn signal. See TEX. TRANSP. CODE

ANN. § 545.104 (emphasis added).

         We conclude Sergeant Sullivan had reasonable suspicion to believe a traffic violation occurred

and was justified in stopping Sanchez’s vehicle and we overrule Sanchez’s first two issues on appeal.


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See Lerma, 543 S.W.3d at 190. Because we must sustain the trial court’s ruling if it is correct

under any applicable theory of law, we need not address the other alleged traffic violations. See

id.

        We next address Sanchez’s contention the trial court erroneously denied his requested jury

instruction.

                                         JURY INSTRUCTION

A.      Arguments of the Parties

        Sanchez argues the trial court erred in failing to include his requested jury instruction in

accordance with article 38.23 of the Texas Code of Criminal Procedure. The State counters there

was no issue of fact and thus nothing to warrant the jury instruction.

B.      Texas Code of Criminal Procedure Article 38.23

        Texas 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).

        An instruction “under Article 38.23(a) is limited to disputed issues of fact that are material

to [the defendant’s] claim of a constitutional or statutory violation that would render evidence

inadmissible.” Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007); see also

Holmes v. State, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008) (“There is, of course, nothing to

instruct the jury about if the suppression question is one of law only, and there is nothing to instruct

the jury about unless there is affirmative evidence that raises a contested fact issue.”).


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       A defendant must satisfy three requirements before being 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.

Madden, 242 S.W.3d at 510; accord Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012).

       “To raise a disputed fact issue warranting an article 38.23(a) jury instruction, there must

be some affirmative evidence that puts the existence of that fact into question.” Madden, 242

S.W.3d at 513. Simply raising the issue via cross-examination is insufficient to create a factual

dispute for purposes of an article 38.23(a) instruction. Oursbourn v. State, 259 S.W.3d 159, 177

(Tex. Crim. App. 2008); Madden, 242 S.W.3d at 514.

       If there is no disputed factual issue, the legality of the conduct is determined by the trial

judge alone, as a question of law. Madden, 242 S.W.3d at 510. And if other facts, not in dispute,

are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is

not submitted to the jury because it is not material to the ultimate admissibility of the evidence.

Siddiq v. State, 502 S.W.3d 387, 405 (Tex. App.—Fort Worth 2016, no pet.).

C.     Proceedings at Trial

       The only evidence presented during the trial regarding whether Sanchez violated the

Transportation Code came from two sources: (1) Sergeant Sullivan testified Sanchez turned left

without signaling, and (2) the recording depicted Sanchez turning left without signaling.

       Although trial counsel attempted to cast doubt on Sergeant Sullivan’s credibility, nothing

in the officer’s testimony raised a fact issue that was affirmatively contested. See Madden, 242

S.W.3d at 510. Sanchez argues the dashcam recording is not clear enough to support the State’s

claim that Sanchez turned left without signaling. Sanchez misapplies the rationale in Madden. See


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id. The Madden Court specifically explained that “[o]nly if the video clearly showed that appellant

affirmatively did not do something that [the trooper] said that he did do, and the video clearly

would have shown that conduct if it had occurred, would there be some affirmative evidence of a

disputed historical fact.” Madden, 242 S.W.3d at 516 (emphasis added). For Madden to apply in

this case, Sullivan’s dashcam recording would have to show Sanchez actually used his turn-

signal—which is not the case.

        Sanchez contends the State was unable to articulate which “law was broken by

Mr. Sanchez’s driving actions.” As described above, the State alleged, and the trial court made

findings of fact, Sanchez violated section 545.104(a) of the Texas Transportation Code. Sergeant

Sullivan testified, the dashcam recording supports, and the trial court affirmatively found that

Sanchez made a left turn without using a turn-signal. There was no testimony disputing Sanchez’s

failure to use his signal.

        Whether Sanchez made a lane change and whether he swerved, drifted, or veered onto the

side of the road are not factual issues that are material to the lawfulness of the challenged

conduct—turning left without signaling.       See Madden, 242 S.W.3d at 510.           During cross-

examination, trial counsel questioned Sergeant Sullivan extensively regarding the forty-second to

one-minute delay between when Sergeant Sullivan first witnessed Sanchez change lanes without

signaling and when the officer ultimately initiated the traffic stop in Sanchez’s driveway. The

officer explained how he turned his patrol car from the southbound lane on NW 24th Street onto

westbound Poplar. He began to follow Sanchez to “determine other factors.” Sanchez was driving

very slowly, and he crossed over the midline of the roadway. These actions confirmed the officer’s

decision to initiate the traffic stop. The trial court concluded the argument that the “one-minute

delay between the initial traffic violation and the traffic stop rendered the traffic stop illegal was




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meritless.” Cf. State v. Dixon, 206 S.W.3d 587, 591 (Tex. Crim. App. 2006) (concluding three

miles after violation diminished officers’ credibility).

D.     Analysis

       The record does not support, and Sanchez did not direct the trial court’s attention to the

existence of any evidence supporting an issue of fact that was affirmatively contested regarding

whether Sanchez turned left onto Poplar without signaling. See Madden, 242 S.W.3d at 510.

Without such evidence, Sanchez was not entitled to a jury instruction under article 38.23(a). See

id. Accordingly, we cannot conclude the trial court erred in denying Sanchez’s requested jury

instruction and we overrule Sanchez’s third issue.

                                           CONCLUSION

       Because the evidence is undisputed that Sergeant Sullivan witnessed Sanchez turn left onto

Poplar without signaling, the officer had reasonable suspicion to believe a traffic violation had

occurred and was justified in stopping Sanchez’s vehicle. Additionally, because the record does

not contain evidence raising a fact issue affirmatively contesting the conduct in question, Sanchez

was not entitled to an article 38.23(a) jury instruction. We therefore affirm the trial court’s

judgment.

                                                   Patricia O. Alvarez, Justice

PUBLISH




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