Opinion filed April 2, 2020




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-18-00097-CR
                                  __________

                JOE HENRY COURTNEY, JR., Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee

                     On Appeal from the 104th District Court
                             Taylor County, Texas
                         Trial Court Cause No. 20274B


                      MEMORANDUM OPINION
       The jury convicted Joe Henry Courtney, Jr. of possession of a controlled
substance (cocaine) and assessed his punishment at confinement for a term of fifty
years in the Institutional Division of the Texas Department of Criminal Justice. In
a single issue, Appellant contends that the trial court erred by denying his requested
instruction under Article 38.23. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West
2018). We affirm.
                                 Background Facts
      Abilene Police Officer Christopher Milliorn stopped a vehicle on July 15,
2015, because the vehicle did not “come back with any return at all” when
Officer Milliorn ran the vehicle’s license plate number. Officer Milliorn testified
that it is very rare for a vehicle to not have a return. Accordingly, Officer Milliorn
ran the license plate number three times before stopping the vehicle.
      Officer Milliorn testified that the vehicle initially “stutter stopped” prior to
reaching a bridge and then the vehicle moved forward past the bridge before
stopping. Appellant was a passenger in the vehicle. Officer Milliorn ran the VIN
from the vehicle, and it also did not produce a return from dispatch. Officer Milliorn
believed that the vehicle may have been stolen.
      While Officer Milliorn was back at his patrol car running information through
dispatch and speaking with another officer, an unidentified passerby approached him
and said that there were “needles” on the ground back where he and the vehicle had
traveled. Upon investigating the passerby’s report, Officer Milliorn found syringes
in the roadway in the area where the vehicle had stutter stopped. Officer Milliorn
testified that the syringes were commonly used for drugs. Officer Milliorn noted
that the syringes were not damaged, even though they were in the roadway.
Officer Milliorn acknowledged that he did not observe the vehicle’s occupants throw
anything out of the vehicle. During the stop, he watched the video from the dash
camera in his patrol car, but he did not observe anything being thrown from the
vehicle.




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      Officer Milliorn called for a canine unit to conduct an open air sniff of the
vehicle. When asked why he called for the canine unit, Officer Milliorn testified
that he called for it because of the lack of a return for the vehicle, the unusual stutter
stop that the vehicle did prior to stopping, and the presence of the syringes in the
area of the stutter stop. Canine Officer Brandon Scott arrived with his drug dog,
Zeek. While performing an open air sniff of the vehicle, Zeek alerted on the
passenger door handle where Appellant had been sitting in the vehicle. Officer
Milliorn subsequently found a rock of crack cocaine weighing 2.1 grams in
Appellant’s pocket.
      The record does not indicate that Appellant filed a motion to suppress. At
the close of evidence, Appellant requested an Article 38.23 instruction so that the
jury could determine if Officer Milliorn had reasonable suspicion to detain
Appellant. The trial court denied Appellant’s requested instruction.
                                        Analysis
      In his sole issue, Appellant contends that the trial court erred by denying his
request for an Article 38.23 jury instruction concerning whether Officer Milliorn had
reasonable suspicion to detain Appellant. We review a claim of jury charge error
using the procedure set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985). See State v. Ambrose, 487 S.W.3d 587, 594 (Tex. Crim. App. 2016).
Our first duty in analyzing a jury charge issue is to decide whether error exists.
Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017) (citing Barrios v.
State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009)). If error exists, we must
determine whether the error caused sufficient harm to warrant reversal. Id. If a
timely objection was lodged at trial, reversal is required if the error resulted in “some




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harm” to the defendant. Elizondo v. State, 487 S.W.3d 185, 204 (Tex. Crim. App.
2016).
         Article 38.23(a) of the Texas Code of Criminal Procedure precludes the
admission of evidence obtained in violation of the constitution or laws of the State
of Texas or the Constitution or laws of the United States of America. The article
further provides:
             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.
CRIM. PROC. art. 38.23(a). There must be a genuine dispute about a material fact
issue before an Article 38.23 instruction is warranted. Madden v. State, 242 S.W.3d
504, 509–10 (Tex. Crim. App. 2007). The defendant must demonstrate that (1) the
evidence heard by the jury raises an issue of fact, (2) the evidence on that fact is
affirmatively contested, and (3) the contested factual issue is material to the
lawfulness of the challenged conduct in obtaining the evidence. Id. If there is no
disputed issue of material fact, the legality of the challenged conduct is a question
of law for the trial court. Id. And, if other undisputed facts are sufficient to establish
the lawfulness of the conduct, the contested factual issue is not material and the
defendant is not entitled to a jury instruction on the fact issue. See id. at 510–11.
      To raise a disputed fact issue, there must be some affirmative evidence that
contradicts the existence of that fact. Id. at 513. This evidence can come “from any
source,” regardless of whether it is “strong, weak, contradicted, unimpeached, or
unbelievable.” Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting
Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1996, pet.




                                            4
ref’d)). A defendant’s questions on cross-examination cannot, by themselves, raise
a disputed fact issue. Madden, 242 S.W.3d at 515. However, the witnesses’ answers
to those questions might raise a fact issue. Id. at 513.
        As noted previously, Appellant sought an Article 38.23 instruction for the jury
to determine if Officer Milliorn had reasonable suspicion to continue his detention
until the canine unit arrived to perform the open air sniff of the vehicle.1 Thus,
Appellant did not request an Article 38.23 instruction on a historical fact because the
legal determination of whether an officer had reasonable suspicion was one for the
trial court, not one for the jury under Article 38.23. Id. at 511 (noting that trial judge
decides what “quality and quantum” of facts are necessary to establish legal terms
of art like “reasonable suspicion” or “probable cause”).                           “Only the judge is
authorized to determine the legal significance of the material facts in the case and
how they affect the ultimate conclusion regarding the existence, vel non, of probable
cause or reasonable suspicion.” Robinson v. State, 377 S.W.3d 712, 722 (Tex. Crim.
App. 2012).
        As suggested by the Texas Court of Criminal Appeals in Hamal v. State, a
factual dispute that will require an Article 38.23 instruction is a dispute about what
an officer “did, said, saw, or heard.” 390 S.W.3d 302, 307 (Tex. Crim. App. 2012).
In this case, there is no dispute about what Officer Milliorn did, said, saw, or heard.
Specifically, Officer Milliorn acknowledged that he did not see Appellant throw
anything out of the vehicle prior to the stop. Furthermore, Officer Milliorn admitted
that the presence of the syringes near the area where the vehicle stutter stopped may


        1
          A sniff of the outside of a vehicle by a trained canine during a routine, valid traffic stop is not a
search within the meaning of the Fourth Amendment; thus, it does not require reasonable suspicion of
contraband in order for it to be performed. See Haas v. State, 172 S.W.3d 42, 51 (Tex. App.—Waco 2005,
pet. ref’d) (citing Illinois v. Caballes, 543 U.S. 405, 407–08 (2005)).




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have been a coincidence. Accordingly, there was no dispute of historical fact in this
case that required an Article 38.23 instruction. We overrule Appellant’s sole issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


April 2, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.




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