                                  NUMBER 13-08-00251-CR

                                  COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


FRANCIS MARK HAFNER,                                                                      Appellant,

                                                    v.

THE STATE OF TEXAS,                                                                       Appellee.


                 On appeal from the County Court at Law No. 3
                            of Dallas County, Texas.


                              MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Yañez and Benavides
                Memorandum Opinion by Justice Yañez

        A jury found appellant, Francis Mark Hafner, guilty of one count of misdemeanor

driving while intoxicated.1 The trial court sentenced appellant to 120 days in county jail,




        1
         See T EX . P EN AL C OD E A N N . § 49.04(a) (Vernon 2003). Driving while intoxicated is a Class B
m isdem eanor. Id. § 49.04(b).
probated for eighteen months, with a $600.00 fine.2 By one issue, appellant contends that

the trial court erred when it failed to instruct the jury pursuant to article 38.23 of the Texas

Code of Criminal Procedure.3 We affirm.

                                                     I. BACKGROUND

        On April 30, 2006, Officer Frank Plaster of the Dallas Police Department stopped

appellant for failure to maintain a single lane.4 Officer Plaster testified that after turning on

McKinney Avenue, appellant "went into the right lane—or halfway into the right lane and

halfway into the center lane, so he was straddling a lane of traffic. And he drove like

that . . . about four blocks." The State asked if there was any construction or "anything in

the roadway which would have impeded the vehicle from traveling completely in one lane

or the other[.]" Officer Plaster responded that there was no construction in the area, and

he did not recall anything that would have impeded a vehicle, "especially not for four

blocks." Officer Plaster stated that there were no impediments on the right lane or the

center lane preventing appellant from driving in those lanes completely. According to

Officer Plaster, it was not safe for a vehicle to drive in two lanes at once because this may

have confused another driver in another lane. He stated, "You know, someone pulling out

would not know what lane he was in or which lane he was taking. Especially—since we're

talking about four blocks, we're not talking about just momentarily weaving into another

lane. We're talking about straddling two lanes for four blocks. . . . " Officer Plaster testified

that both lanes were clearly marked. Officer Plaster agreed that he would not pull



        2
         See id. § 12.22 (Vernon 2003) (providing that the punishm ent range for a Class B m isdem eanor is
up to 180 days in county jail, or a $2,000 fine, or both).

        3
            See T EX . C OD E C R IM . P R O C . A N N . art. 38.23 (Vernon 2005).

        4
            See T EX . T RAN SP . C OD E A N N . § 545.060(a) (Vernon 1999).

                                                               2
someone over if that person momentarily drove into another lane to avoid construction or

some other impediment on the road.

       Officer Plaster stated that appellant then activated his turn signal, changed into the

left lane, bumped into the left curb and continued driving while rubbing the curb. Officer

Plaster turned on his emergency lights and initiated a traffic stop. After Officer Plaster

administered field sobriety tests, he arrested appellant for the offense of driving while

intoxicated.

       During cross-examination of Officer Plaster, the trial court admitted defense exhibit

one, which is a picture of McKinney Street showing a small construction area. The picture

shows one barrel on the left lane a few feet away from the curb, and what appears to be

a rectangular excavation site covered by a sign. On redirect examination, the State asked

Officer Plaster if he saw anything in the picture that would have prevented a driver from

"having to go from the right lane into the left lane of traffic." Officer Plaster stated, "No."

Furthermore, Officer Plaster stated that he would not have stopped a person who had

swerved out of the left lane to avoid the barrel.

       Appellant requested that the trial court include an instruction pursuant to 38.23 of

the code of criminal procedure in the jury charge.5 The trial court denied appellant's

request for the instruction. The jury found appellant guilty of driving while intoxicated and

sentenced him to 120 days in county jail, probated for eighteen months, with a $600.00

fine. This appeal ensued.

                                            II. 38.23 JURY INSTRUCTION

       By his sole issue, appellant contends that the trial court should have included an



       5
           See T EX . C OD E C R IM P R O C . A N N . § 38.23(a).

                                                               3
instruction pursuant to article 38.23 in the jury charge because the evidence raised the

issue of whether the initial stop was lawful.6 The State argues that there was "no disputed

factual issue concerning whether Officer Plaster reasonably believed, at the time he

stopped appellant's vehicle, that appellant had committed the traffic offense of failure to

maintain a single lane."

A. Applicable Law

       "When a traffic violation is committed in an officer’s presence, the officer has

probable cause to lawfully stop and arrest or lawfully detain the violator.”7 Pursuant to the

transportation code, “[a]n operator on a roadway divided into two or more clearly marked

lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2)

may not move from the lane unless that movement can be made safely.”8

           Article 38.23(a) of the Code of Criminal Procedure states:

       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.9

When a fact issue exists regarding the basis for an officer's seizure of evidence, a




       6
           See id.

       7
           Tyler v. State, 161 S.W .3d 745, 748 (Tex. App.–Fort W orth 2005, no pet.).

       8
       T    EX .   T RAN SP . C O DE . A N N . § 545.060(a).

       9
       T    EX .   C OD E C R IM . P R O C . A N N . art. 38.23(a).

                                                                      4
defendant is entitled to a jury instruction pursuant to article 38.23(a).10

        In most DWI cases, this will arise when a dispute exists regarding the factual
        basis for the officer's stop of the defendant's car. Nevertheless, article
        38.23(a) involves two inquiries: (1) the issue of whether a valid legal basis
        for the seizure exists, which is a question of law reserved for the trial court;
        and (2) the issue of whether the facts support this legal basis, which can be
        submitted to the jury . . . when the pertinent facts are contested. If there is
        no dispute regarding the factual basis for the challenged seizure, then the
        trial court must resolve the legal question presented and a jury instruction is
        inappropriate.11

To be entitled to a jury instruction under article 38.23, the defendant must satisfy three

requirements: (1) the evidence heard by the jury raised an issue of fact; (2) the evidence

on that fact was affirmatively contested; and (3) that contested factual issue is material to

the lawfulness of the challenged conduct in obtaining the evidence.12 "There must be a

genuine dispute about a material fact."13 The legality of the officer's conduct is determined

by the trial judge alone, as a question of law if there is no disputed factual issue.14

B. Discussion

        Here, Officer Plaster stopped appellant for failure to maintain a single lane after

observing appellant "straddle" two lanes—the right and center lanes of McKinney Street.

Appellant drove in those two lanes for approximately four blocks. Officer Plaster stated

that he would not have pulled appellant over if appellant had been avoiding construction.

On cross-examination, Officer Plaster appeared to testify that he did not recall any



       10
          Davy v. State, 67 S.W .3d 382, 388 (Tex. App.–W aco 2001, no pet.) (citing Pierce v. State, 32
S.W .3d 247, 251 (Tex. Crim . App. 2000)).

        11
             Davy, 67 S.W .3d at 388 (internal citations om itted).

        12
             Madden v. State, 242 S.W .3d 504, 510 (Tex. Crim . App. 2007).

        13
             Id.

        14
             Id.

                                                         5
construction, but acknowledged that defense exhibit one depicted a construction area

located on McKinney Street.

        Appellant asserts that a disputed fact issue was raised by defense exhibit one.

However, in order for appellant to raise a factual issue, in this case, he must have

presented some affirmative evidence that there was construction blocking either the right

or middle lanes—the two lanes that he "straddled."15 Moreover, appellant must have

presented some affirmative evidence that there was construction preventing him from

maintaining a single lane for the entire four blocks.16 The record does not contain any

affirmative evidence that on the night that appellant was arrested, there was, in fact,

construction in either the right or center lanes that prevented him from maintaining a single

lane for the entire four blocks. Defense exhibit one shows a small area of construction on

the left lane near the curb. There was no evidence offered that the area of construction

depicted in defense exhibit one would have hindered appellant’s ability to stay within either

the right or center lane. Therefore, appellant did not provide any affirmative evidence

raising an issue of fact regarding whether construction prevented him from maintaining a

single lane for four blocks.17

        Appellant also appears to argue that he was entitled to a 38.23 instruction because

the State did not provide evidence that his actions were unsafe.18 However, Officer Plaster

        15
           See Madden, 242 S.W .3d at 513 ("To raise a disputed fact issue warranting an Article 38.23(a) jury
instruction, there m ust be som e affirm ative evidence that puts the existence of that fact into question.").

        16
           W e note that appellant does not dispute that he failed to m aintain a single lane, but instead
m aintains that he raised a fact issue concerning whether there was construction that prevented him from
staying in his lane and whether his m ovem ent was m ade safely.

        17
             See Madden, 242 S.W .3d at 511.

        18
           See Eichler v. State, 117 S.W .3d 897, 900-02 (Tex. App.–Houston [14th Dist.] 2003, no pet.)
(explaining that the State did not carry its burden of dem onstrating the reasonableness of a police stop where
the appellant swerved a single tim e into the adjacent lane traveling in the sam e direction, and there was no

                                                      6
testified that it was unsafe for appellant to "straddle" two lanes for four blocks, because

there were traffic and bicyclists on the roadway, and other drivers could become confused.

To be entitled to a 38.23 jury instruction, there must be a genuine dispute concerning a

material fact—in this case, whether appellant's actions were unsafe.19 Here, appellant did

not offer any affirmative evidence to dispute Officer Plaster's testimony that appellant's

failure to maintain a single lane was unsafe.20

        Therefore, we conclude that the trial court properly denied appellant's request for

an instruction pursuant to article 38.23 because there was no disputed fact issue regarding

the legality of the traffic stop.21 Accordingly, we overrule appellant's sole issue.

                                             III. CONCLUSION

        We affirm the trial court's judgment.




                                                                    LINDA REYNA YAÑEZ,
                                                                    Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 17th day of September, 2009.




evidence that the m ovem ent was unsafe or dangerous).

        19
             See Madden, 242 S.W .3d at 510.

        20
             See id.

        21
           See Pierce, 32 S.W .3d at 251 ("[The second sentence of 38.23] can operate only if the trial court
has adm itted evidence, and only if there is a contested issue of fact about the obtaining of the evidence. This
has been our holding from the earliest days of the statute, and it is our holding today. There is no issue for
the jury when the question is one of law only.") (citing Bell v. State, 938 S.W .2d 35, 48 (Tex. Crim . App.
1996)).

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