Opinion issued January 29, 2019




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-14-00189-CR
                           ———————————
                         RUBEN TOTTEN, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 228th District Court
                           Harris County, Texas
                       Trial Court Case No. 1365961



                                  OPINION

      A jury convicted appellant, Ruben Totten, of possession of between one and

four grams of a controlled substance, found two enhancements true, and assessed his
punishment at 25 years’ confinement. In a single issue on appeal, appellant contends

the trial court erred by refusing his requested Article 38.23 jury charge.1

                                   BACKGROUND

      This case was previously decided by this Court on March 31, 2015. See Totten

v. State, No. 01-14-00189-CR, 2015 WL 1501799 (Tex. App.—Houston [1st Dist.]

Mar. 31, 2015) (not designated for publication) (hereafter, “Totten 1”). The Court of

Criminal Appeals reversed and remanded the case to this Court. See Totten v. State,

No. PD.-0483-15, 2016 WL 5118331 (Tex. Crim. App. Sept. 21, 2016) (not

designated for publication) (hereafter, “Totten 2”).

Background Facts

      The facts relevant to the disposition of this appeal are set forth in the Court of

Criminal Appeals’ opinion as follows:

      In October 2012, Houston Police Department Officer Trant, while
      sitting in an unmarked car, surveilled a duplex known for narcotics
      activity. While watching the duplex, Trant saw a green Ford Ranger
      drive past him and pull into the duplex’s parking lot. Two men got out
      of the vehicle. One opened the Ranger’s hood and appeared to be
      examining the engine. The other walked toward the duplex. After a
      short time, the man returned from the duplex and got into the Ranger.


1
      See TEX. CODE CRIM. PROC. ANN. art. 38.23 (providing that “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 in such event, the jury shall disregard any such evidence
      so obtained”).
                                             2
       They both drove off. As the Ranger left the location, the driver failed
       to use the turn signal as it turned from Brownsville on to Frankie Street.
       Instead of attempting to pull the Ranger over for the traffic violation,
       Trant notified Officers Kunkel and Betancourt, who were driving a
       marked patrol unit, about the traffic violation he saw. Trant described
       the vehicle to Kunkel and Betancourt as a green Ford Ranger.

       ****

       Kunkel confirmed that Trant notified the officers that he observed a
       green Ford Ranger turn without using a turn signal and provided the
       direction the Ranger was traveling. Although he did not recall being
       given a license-plate number, Kunkel identified the vehicle within a few
       seconds, and he and Officer Betancourt pulled over a green Ford
       Ranger. Kunkel approached the passenger side window where Totten
       was sitting. When asked if he had anything illegal on his person, Totten
       responded that he had a switchblade knife. Kunkel placed Totten in
       handcuffs for possession of a prohibited weapon and, searching Totten
       incident to the arrest, found crack cocaine in Totten’s shoe.

Id. at *1.

This Court’s Previous Opinion and the Court of Criminal Appeals’s Opinion

       On original submission of this case, appellant argued that he was entitled to a

jury instruction under Article 38.23 for two reasons: (1) that there was a fact question

about whether the green truck Kunkle and Betancourt detained was the same green

truck that Trant had seen turn without signaling and (2) that there was a fact question

about whether Trant was in a position to even see the green truck turn without

signaling. Totten 1, 2015 WL 1501799 at *2. This Court ruled in appellant’s favor

on his first reason, holding that appellant should have received an Article 38.23

instruction because there was a fact question about whether the green truck stopped

                                           3
by Kunkle and Betancourt was the same green truck that Trant had seen turn without

signaling. Id. at *4.

      The Court of Criminal Appeals agreed that there was a fact question about

whether Kunkle and Betancourt pulled over the same green truck that Trant saw turn

without signaling, Totten 2, 2016 WL 5118331 at *2, but concluded that the fact

issue was irrelevant because “a mistake about the facts, if reasonable, will not vitiate

an officer’s actions in hindsight so long as his actions were lawful under the facts as

he reasonably, albeit mistakenly, perceived them to be.” Id. However, the Court of

Criminal Appeals remanded the case to this Court because we “did not address

Totten’s alternative argument in support of his jury-charge claim” and instructed us

“to determine . . . whether a material factual dispute existed that required an Article

38.23 instruction.” Id. at *3.

      On remand, the parties filed amended briefs, addressing appellant’s

alternative argument that there was a fact question about whether Officer Trant was

in a position to have seen whether appellant signaled before turning.

                         ARTICLE 38.23 INSTRUCTION

In his sole issue on remand, appellant contends as follows:

      The defense offered photographs and maps challenging Officer Trant’s
      ability to observe the traffic violation he claimed to have witnessed.
      The trial court refused the request to instruct the jury under Article
      38.23. Did the trial court commit reversible error by refusing to give a
      requested jury instruction under Article 38.23?

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Applicable Law

Article 38.23 provides:

      (a) 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.

      (b) 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).

      Noting that the “terms of the statute are mandatory,” the Court of Criminal

Appeals has held that “when an issue of fact is raised, a defendant has a statutory

right to have the jury charged accordingly.” Madden v. State, 242 S.W.3d 504, 510

(Tex. Crim. App. 2007).

      A defendant must meet three requirements for the trial court to submit an

instruction pursuant to Article 38.23: “(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) the contested factual issue must be material to the lawfulness of the challenged

conduct.” Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008) (citing

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




                                           5
raising a fact issue “may be strong, weak, contradicted, unimpeached, or

unbelievable.” Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002).

      In Madden v. State, the Court of Criminal Appeals provided the following

explanation about the type of conflicting, affirmative evidence requiring an Article

38.23 jury instruction:


      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. In this context, a cross-examiner’s
      questions do not create a conflict in the evidence, although the
      witnesses’s answers to those questions might.

      Here, for example, one issue was whether appellant exceeded the speed
      limit of 55 m.p.h. through a construction site, giving Officer Lily a
      reasonable suspicion to stop him. If Officer Lily testifies that appellant
      did speed and Witness Two (or appellant) testifies that he did not speed,
      this disputed factual issue must be submitted to the jury. If the jury finds
      that appellant did obey the speed limit and that Officer Lily was
      unreasonable in believing that he did not, then they may not consider
      the evidence obtained as a result of this unlawful detention. If, however,
      Officer Lily says that appellant did speed, and Witness Two (or
      appellant) says that he doesn’t remember or doesn’t know, there is no
      disputed fact to submit because there is no affirmative evidence of a
      factual conflict. Similarly, if Officer Lily testifies that appellant did
      speed, but the cross-examiner grills him, “Isn’t it true that he really did
      obey the speed limit, you’re wrong or you’re lying?” there is no factual
      dispute unless Officer Lily admits, “Yes, that is true.” The cross-
      examiner cannot create a factual dispute for purposes of an Article
      38.23(a) instruction merely by his questions. It is only the answers that
      are evidence and may create a dispute. Even the most vigorous cross-
      examination implying that Officer Lily is the Cretan Liar does not raise
      a disputed issue. There must be some affirmative evidence of “did not
      speed” in the record before there is a disputed fact issue. Because there
      was such evidence in this record, the trial judge properly gave a jury
      instruction on this disputed fact.
                                           6
242 S.W.3d at 513–14 (footnotes omitted).

       Here, the only pieces of evidence relevant to appellant’s alleged failure to

properly signal were Trant’s testimony and the photographs and maps admitted

during his testimony. See Oursbourn, 259 S.W.3d at 177 (“This factual dispute can

be raised only by affirmative evidence, not by mere cross-examination questions or

argument.”). Thus, the issue before this Court is whether the photographs and maps

affirmatively contested Trant’s testimony about appellant’s failure to properly signal

as it relates to the lawfulness of the subsequent traffic stop.

Analysis

       Appellant relies on Mills v. State, 296 S.W.3d 843, 849 (Tex. App.—Austin

2009, pet. ref’d), to argue that the photographs and maps admitted at trial challenged

“Trant’s ability to observe the traffic violation he claimed to have witnessed[,]” and

that “there is a question as to whether Officer Trant could have seen what he testified

to.”

       In Mills, the defendant activated his blinker before turning, but the arresting

officer testified that the defendant did not activate the blinker within 100 feet of the

intersection, as required by law. Id. at 846. The officer stopped the defendant based

on the traffic violation, and a subsequent search revealed illegal drugs. Id. The

defendant argued that a video of the stop raised a fact issue regarding whether the

police officer was in a position to see the defendant’s blinker for 100 feet before it
                                           7
reached the intersection. Id. at 846–47. In concluding that Mills should have been

given a requested Article 38.23 instruction, the Austin Court of Appeals noted that

the officer’s responses on cross-examination and the video were sufficient to raise a

fact question about the officer’s ability to have seen the alleged traffic offense. Id.

at 848–49. Specifically, the court noted that, on cross-examination, defense counsel

elicited testimony from the officer about his location relative to the defendant’s

vehicle and obstacles that could have blocked his line of sight. Id. at 847. The court

also noted that the video of the arrest “contained various potential obstacles to [the

officer’s] line of sight,” and that on the videotape a “building or trailer blocks one’s

view of Market Street behind it until the patrol car passes to the left of the building

and almost immediately turns right onto Market Street,” and that “Mill’s car appears

to come into view when [the officer] passes the portable building and immediately

turns right.” Id. at 846.

      In this case, there is no videotape of the arrest; the only exhibits are maps and

photographs2 of the location at which Trant testified that he observed appellant turn


2
      Appellant’s brief contains photographs and maps that have been altered from those
      admitted at trial, presumably in an attempt to “clarify” Officer Trant’s testimony
      about the exhibits. These modifications are not part of the appellant record because
      they were not admitted at trial in this condition. See TEX. R. APP. 34.6(a)(1), (g).
      In addition, the alterations are misleading. For example, appellant’s altered version
      of Defendant’s Exhibit 1 purports to show that Officer Trant was parked at the
      intersection of Brown and Hollywood Street. However, according to the scale
      provided at the bottom of the map, that would have been almost 1000 feet (333
      yards) from the intersection where the alleged offense occurred, but both parties
      agree that Trant was only 300 feet (100 yards) from the intersection. The 100-yard
                                            8
right without signaling. Because appellant’s cross-examination of Trant cannot raise

a fact question, we look to his answers to those questions and the exhibits admitted

at trial to determine whether a fact question was raised regarding Trant’s ability to

have seen the failure-to-signal traffic offense.

      Trant testified that he was observing the intersection of Frankie and

Brownsville Streets from his location approximately 100 yards (300 feet) down

Brownsville Street. He was not using binoculars. Trant admitted that he could see

less than half of the duplex that he had under surveillance near that intersection, but

he was able to see the green truck when it left the duplex and stopped at the stop

sign. At that point, he noticed that the truck did not signal before turning right. When

the truck actually turned right, it went out of his view. Trant testified that it was

around 4:45 p.m. when he observed the traffic offense and that it was still daylight.

He was not questioned about, nor did he mention, any obstructions between his

vantage point and the intersection at which he observed appellant’s failure to signal.

Likewise, Defendant’s Exhibits 1 through 8 show no obstructions. Defendant’s

Exhibit 5 is an aerial view that shows Frankie Street running horizontally at the top



      distance testified to by Trant would put his position near Brownsville and Beacon
      Streets, which, in fact, corresponds more closely with a mark made on Defendant’s
      Exhibit 1 as it was admitted at trial and Trant’s testimony about his location. Indeed,
      Trant testified that he had pulled off the side of the road on Brownsville Street
      between Beacon and Frankie Streets. Thus, this Court will consider only the actual
      exhibits admitted at trial and will disregard the altered versions of the exhibits in
      appellant’s brief.
                                             9
and Brownsville Street running vertically. The duplex complex under surveillance

is at the top on the left of the photograph, and a dot marks Trant’s location further

down Brownsville on the right side of the street. There are no visible obstructions

between that location and the intersection of Brownsville and Frankie Streets. And,

Defendant’s exhibit 8 is a photograph taken from the intersection of Frankie and

Brownsville Streets, shows the entrance to the duplex complex under surveillance

on the right and the stop sign at which appellant failed to signal on the left.

According to his testimony, Trant was located located approximately 100 yards

further down Brownsville on the same side as the street as the stop sign. Defendant’s

exhibit 8 also shows no obstructions to Trant’s line of sight.

      Because the testimony and photographs in this case do not raise an issue as to

whether Trant’s view of the intersection was obstructed, this case is distinguishable

from Mills. Indeed, it is more like Pryor v. State, No. 03-13-00347-CR, 2015 WL

2066228 (Tex. App.—Austin May 1, 2015, pet. ref’d), in which the Austin Court of

Appeals distinguished its opinion in Mills because, unlike in Mills, “there was no

such equivocation [regarding obstructions] in the officer’s testimony.” Id. at *2 fn.1.

      There being no fact issue raised about Officer Trant’s ability to see appellant’s

failure to signal, the trial court did not err in refusing appellant’s request for a 38.23

jury instruction.




                                           10
                                CONCLUSION

      We overrule appellant’s sole issue on remand and affirm the trial court’s

judgment.



                                            Sherry Radack
                                            Chief Justice


Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Publish. TEX. R. APP. P. 47.2(b).




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