                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00422-CR


ROBERT BRETT DYER                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE


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      FROM COUNTY CRIMINAL COURT NO. 7 OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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                                I. INTRODUCTION

      Appellant Robert Brett Dyer appeals his conviction for driving while

intoxicated.   In a single point, Dyer argues that the trial court erred by not

including an article 38.23(a) instruction in the jury charge because a disputed

issue of fact existed. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon

2005). We will reverse and remand.

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

      On January 16, 2008, Fort Worth police officers Ryan Timmons and

Carolyn Gilmore were patrolling Northeast 28th street in Fort Worth. At 1:24

a.m., the officers began following a gray Ford F-150 truck driven by Dyer and

observed the truck swerve to the left and strike the median with the driver‘s side

tires. The officers described the median as a six-to-eight-inch curb separating

east-bound and west-bound traffic. The officers initiated a traffic stop, and at that

point, they activated an on-dash video camera. After approaching Dyer‘s vehicle,

Officer Timmons noticed a strong odor of alcohol emanating from it and that Dyer

had very watery eyes and slurred speech. Officer Timmons asked Dyer to step

out of the vehicle and to perform a variety of field sobriety tests, all of which Dyer

failed. The officers arrested Dyer for driving while intoxicated.

      At Dyer‘s trial, Officers Timmons and Gilmore both testified that they saw

Dyer‘s vehicle hit the curb. The videotape of the stop was played for the jury and

shows Dyer pointing to his vehicle several times while talking to the officers; the

videotape did not have audio. Both officers were cross-examined about what

Dyer was saying as he pointed to his tires; Officer Timmons recalled that he

―guess[ed] [Dyer] didn‘t think he struck the median,‖ and Officer Gilmore testified

that she thought Dyer was trying to argue that there was no damage to his tires.

Dyer‘s sole witness was his father, Dewayne Simpson Dyer. He testified about

his son‘s various physical and mental ailments, including his hearing loss,

resulting speech problems from his hearing loss, and an old injury to his knee.


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The jury found Dyer guilty, and the trial court assessed his punishment at 180

days in jail, probated for twenty-four months, and a $750 fine.

                     III. ARTICLE 38.23(a) JURY INSTRUCTION

      In his sole point, Dyer argues the trial court erred by not including an article

38.23(a) instruction in the jury charge because a fact issue existed regarding

whether his vehicle struck the curb, which was the reason the officers stopped

him. Dyer acknowledges that he did not request an article 38.23(a) instruction,

but he argues that the trial court‘s failure to sua sponte include such an

instruction caused him to suffer egregious harm.

                             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.

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

determine whether error occurred.       If it did, we must then evaluate whether

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

731–32.

      If there is error in the court=s charge but the appellant did not preserve it at

trial, we must decide whether the error was so egregious and created such harm

that the appellant did not have a fair and impartial trialCin short, that Aegregious

harm@ has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985) (op. on reh=g); see Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006);

Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Hutch v. State, 922


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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.

      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 172–

74. 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 to prove and 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.

         B. The Law Concerning an Article 38.23(a) Jury Instruction

      Article 38.23(a) provides that no evidence obtained by an officer or other

person in violation of the laws or constitutions of Texas or the United States shall

be admitted in evidence against the accused on the trial of any criminal case.

Tex. Code Crim. Proc. Ann. art. 38.23(a). It also provides that when the legal

evidence raises such an issue, the jury shall be instructed that if it believes, or

has a reasonable doubt, that the evidence was obtained by such a violation, then

it shall disregard any such evidence. Id.


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      A defendant‘s right to the submission of jury instructions under article

38.23(a) is limited to disputed issues of fact that are material to his 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). A defendant

must meet three requirements before he is 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. Id. at 510.

      In order for there to be a conflict in the evidence that raises a disputed fact

issue, there must be some affirmative evidence in the record that puts the

existence of that fact in question. Id. at 513. 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. Bell v. State, 938 S.W.2d

35, 48 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997).

                          C. Disputed Issue of Material Fact

      In   this   case,    although   Officers   Timmons    and   Gilmore   testified

unequivocally that they witnessed Dyer swerve and strike the curb on the center

median, their testimony, along with the videotape of the stop, demonstrates that

Dyer disputed that he hit the curb. Dyer can be seen on the videotape pointing to

his truck several times during the conversation with the officers, and after their

discussion, Officer Gilmore approached Dyer‘s car and briefly shined her


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flashlight on the driver‘s side tire. Officer Timmons explained Dyer‘s pointing on

the video—―I guess he didn‘t think he struck the median, but, like I said, both of

us were in the car and observed it right in front of us.‖ During Officer Gilmore‘s

cross-examination, the following exchange occurred:

              Q. All right. And in the video, did you see the - - I guess you
      haven‘t seen the video, but during the interaction with Mr. Dyer, did
      he ever point to his tires and try to get you to go over and look at his
      tires to show you that there was no damage whatsoever to his tires?

            A. I think he was trying to make that argument, yes.

      The question we must answer is whether the videotape and the officers‘

testimony about the videotape created ―some affirmative evidence of ‗did not [hit

the curb]‘ in the record‖ to create a disputed fact issue for the jury to resolve.

See Madden, 242 S.W.3d at 514.          The court of criminal appeals‘ opinion in

Reynolds v. State is instructive. See 848 S.W.2d 148, 148–49 (Tex. Crim. App.

1993). In that case, the officer who stopped Reynolds for speeding testified that

Reynolds ―told [the officer] he did not think he was going ‗that fast‘ and he was

going to contest the speeding ticket.‖       Id. at 148.     Reynolds‘s brother, a

passenger in the car, testified that he did not think Reynolds had been speeding

and that Reynolds himself did not think he had been speeding. The court of

criminal appeals held,

      While it is true that appellant‘s own perception of his speed is not
      dispositive, his perception does fairly raise an issue that he was not
      speeding in fact. If, in turn, the jurors believed that appellant was not
      in fact speeding, they would then be forced to conclude that the
      officer‘s testimony was either mistaken or incredible. And, although a
      conclusion that the officer was mistaken would not affect the


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      legitimacy of his stopping appellant, a conclusion that he was lying
      would. Consequently, appellant‘s perception of his own speed was
      relevant . . . because it did ―have a[] tendency to make the existence
      of a[] fact that is of consequence to a determination of the action
      [i.e., whether the officer was telling the truth] more probable . . . than
      it would [have] be[en] without the evidence.‖ Tex. R. Crim. Evid. 401.

Id. at 149. Thus, the court held that Reynolds was entitled to an article 38.23(a)

instruction because there was conflicting evidence from which the jury could

have concluded that the officer was lying, which would have affected the

legitimacy of the officer‘s stop. Id.

      Here, like in Reynolds, evidence was presented—through the officers‘s

testimony and through the videotape of the stop—that Dyer disputed whether he

had hit the curb. This evidence conflicted with the officers‘s testimony that they

saw Dyer hit the curb, which was the sole reason that they stopped him.2 Had



      2
        The State argues that the officers stopped Dyer because they saw him
commit two separate driving infractions—swerving within his lane (toward the left
side of the lane) and striking the curb. Consequently, the State argues that
because Dyer did not dispute both bases for the stop, he was not entitled to an
article 38.23(a) jury instruction. See, e.g., Doyle v. State, 265 S.W.3d 28, 33–34
(Tex. App.—Houston [1st Dist.] 2008, pet. filed) (holding defendant not entitled to
instruction regarding whether or not he failed to maintain a single lane or weaved
into the oncoming lane when he testified as to why he weaved but did not dispute
that he did, in fact, weave); Sledge v. State, No. 05-93-00667-CR, 1994 WL
247961, at *2 (Tex. App.—Dallas June 9, 1994, no pet.) (not designated for
publication) (holding defendant not entitled to article 38.23(a) instruction when he
disputed officer‘s testimony that he was weaving but did not dispute officer‘s
testimony that he changed lanes without signaling). However, both Officer
Gilmore‘s and Officer Timmons‘s testimony establish that they stopped Dyer for a
single driving infraction—striking the median. In fact, Officer Timmons explained
that it was not possible for a truck the size of Dyer‘s truck to swerve to the left
without hitting the curb. Thus, here, swerving left was not a separate basis for
the stop, but it was part and parcel of Dyer‘s single action in moving to the left in

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the jury believed the contrary evidence and believed that the officers were not

credible, the stop would not have been justified. See id. Consequently, the trial

court erred by not including an article 38.23(a) instruction in the jury charge. See

Tex. Code Crim. Proc. Ann. art. 38.23(a); Reynolds, 848 S.W.2d at 149; see also

Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986) (finding error when

appellant and her witness testified that appellant was driving in a prudent manner

and was not weaving on the roadway, contrary to officer‘s testimony), overruled

on other grounds by Atkinson v. State, 923 S.W.2d 21, 25 (Tex. Crim. App.

1996).

                               D. Egregious Harm

      Having found error, we must conduct a harm analysis. Because Dyer

never presented the trial court with a proposed jury instruction, we will review the

error for egregious harm. See Almanza, 686 S.W.2d at 171.

                            1. The Entire Jury Charge

      We first review the degree of harm in light of the entire jury charge. See id.

The charge contained general language regarding the presumption of innocence;

the burden of proof; the defendant‘s right not to testify; and the jury‘s role as the

exclusive judge of the facts, the credibility of the witnesses, and the weight to be

given the testimony. The charge instructed the jury to acquit Dyer if it had a

reasonable doubt as to his guilt. However, the jury was not instructed to resolve

his lane and striking the curb; if Dyer did not strike the curb, he did not swerve
left.


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the disputed fact issue that either justified or invalidated the officers‘ stop of Dyer.

If properly instructed, the jury would have been required to disregard the

evidence obtained during the stop if it believed that the officers‘ testimony that

they saw Dyer hit the curb was not credible. See Hutch, 922 S.W.2d at 172–23;

Reynolds, 848 S.W.2d at 149; see also Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.

Ct. 1868, 1880 (1968) (holding that an automobile stop is justified when an officer

has reasonable suspicion to believe that a traffic violation has occurred); Woods

v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (same).

                            2. The State of the Evidence

      We next examine the harm in light of the state of the evidence, including

the contested issues and weight of probative evidence.            See Almanza, 686

S.W.2d at 171.      The issue of whether Dyer‘s vehicle struck the curb was

contested at trial, and as we explained above, the jury was allowed to consider

evidence that the officers obtained as a result of the stop without first determining

a fact issue related to the legitimacy of that stop. See Hutch, 922 S.W.2d at

172–73 (―Whether appellant was to be convicted depended upon whose

testimony the jury found credible.‖); see also Terry, 392 U.S. at 21–22, 88 S. Ct.

at 1880; Woods, 956 S.W.2d at 35.

                           3. The Arguments of Counsel

      The bulk of the arguments were devoted to the issue of whether Dyer was

intoxicated, not whether the stop was legal.          The State‘s closing argument

primarily addressed whether Dyer had lost the normal use of his mental or


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physical faculties due to intoxication, rather than due to his various physical

ailments. The State did point out that the reason for the initial stop was that Dyer

had jumped the curb. Defense counsel did not expressly contest the legality of

the stop in his closing arguments, but he did discuss the video in which Dyer can

be seen pointing at his tires and criticized the officers for not inspecting the tires

for damage. Defense counsel argued that it ―all comes down to simply what you

believe in terms of the testimony and the credibility of that testimony.‖ But jury

arguments are not evidence, the jury may not consider them as such, and they

do not serve to instruct the jury on the law. See Hutch, 922 S.W.2d at 173.

                                4. Egregious Harm

      Viewing the jury charge as a whole, considering the state of the evidence

and the fact that the reasonable suspicion for the stop was based solely on a

contested fact issue, and reviewing the arguments by counsel, we conclude that

Dyer suffered egregious harm. Consequently, we sustain Dyer‘s sole point.




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                                IV. CONCLUSION

      Having sustained Dyer‘s sole point, we reverse the trial court‘s judgment

and remand the case for proceedings consistent with this opinion.


                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

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

DELIVERED: December 16, 2010




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