                                   NO. 07-08-0116-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                       MAY 19, 2009

                          ______________________________


                            RICKY D. MANLEY, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

        FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

         NO. 2006-497,968; HONORABLE LARRY B. “RUSTY” LADD, JUDGE

                         _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant, Ricky D. Manley, was convicted by a jury of driving while intoxicated and

sentenced to confinement in the Lubbock County Jail for a period of one hundred eighty-

two days. Appellant contends the trial court committed reversible error when it: (1) denied

his proposed jury instruction that would permit jurors to disregard illegally seized evidence
and (2) denied his requested jury instructions regarding community supervision. The State

candidly concedes error on Appellant’s second issue and acknowledges that this Court

should reverse Appellant’s sentence and remand the cause to the trial court for a new

sentencing hearing. Having reviewed both issues, we accordingly affirm the trial court’s

judgment of conviction, reverse the judgment as to Appellant’s punishment, and remand

the cause to the trial court for new punishment proceedings consistent with this opinion.


                                       Background


       On February 15, 2006, Appellant was charged with driving while intoxicated, a Class

A misdemeanor. Prior to trial, Appellant filed with the judge a written sworn motion seeking

community supervision in the event of a conviction. In that motion, Appellant swore that

he had never previously been convicted of a felony in this or any other state. See Tex.

Code Crim. Proc. Ann. art. 42.12, §4(e) (Vernon Supp. 2008).


       Trial


       At trial, Officer Jordan Gladmann of the Wolfforth Police Department was the sole

witness. Officer Gladmann testified that, on January 13, 2006, he was on patrol with lead

officer Sergeant James Baucum when they spotted Appellant’s pick-up truck at a four-way

stop. As Appellant passed their patrol car, Officer Gladmann turned around in his seat and

observed that the truck’s tag lamp lacked illumination and Appellant’s rear license plate

was illegible at a distance of fifty feet. Officer Gladmann advised Sergeant Baucum of his


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observations and Sergeant Baucum confirmed the violation. The officers made a u-turn,

activated their overhead lights, and initiated a traffic stop.


       When Officer Gladmann encountered Appellant, he could smell a very strong odor

of alcohol emanating from inside the truck. When he advised Appellant that the purpose

of the stop was a defective tag lamp, Appellant admitted his truck was having electrical

problems and that the tag lamp was defective. However, upon closer inspection by

Sergeant Baucum, it was discovered that, although the lamp was illuminated, it was

covered with dirt and road grime.


       During the stop, Appellant was not steady on his feet, his speech was slurred, and

he appeared disoriented while searching for his driver’s license. The officers administered

two field sobriety tests. Appellant exhibited seven of eight indicators of intoxication on the

“walk & turn” test and three of four indicators on the “one leg stand” test. Appellant refused

a breathalyser test. Based upon the information gathered, Appellant was arrested for DWI.

Following his arrest, Appellant’s truck was searched. During the search, officers found an

open bottle of whiskey, a half empty cold can of beer, drug paraphernalia, and the burnt

residue of a marihuana cigarette in the ashtray.


       Prior to the jury being charged, Appellant asserted there was a fact issue whether

the officers’ traffic stop was valid and sought a jury instruction stating, in pertinent part:


       You are instructed that under our law no evidence obtained or derived by an
       officer or other person as a result of an unlawful stop of an accused motor

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       vehicle shall be admissible in evidence against such accused. An officer is
       permitted, however, to make a temporary investigative detention of the
       motorist if the officer has reasonable suspicion if some activity out of the
       ordinary is occurring or has occurred, that the person detained is connected
       with such activity, and that there is some indication that the activity is related
       to a crime or a criminal offense. Now, bearing in mind these instructions, if
       you find from the evidence . . . .


       The trial court denied Appellant’s requested instruction. Thereafter, the jury found

Appellant guilty of DWI.


       Punishment Phase


       During the punishment phase, Appellant asserted he had never previously been

convicted of a felony in Texas, or any other state in the United States, and requested an

instruction regarding the possibility of community supervision. The State asserted that

Appellant had been convicted of the third-degree felony of burglary of a motor vehicle in

1989. The trial court overruled Appellant’s request. Thereafter, the jury sentenced

Appellant to confinement for one hundred eighty-two days in the Lubbock County Jail. This

appeal followed.


                                         Discussion


       Appellant contends the trial court should have issued his proposed instruction

permitting the jury to decide whether the officers lawfully stopped his truck, i.e., did the

officers have reasonable suspicion to make the traffic stop?            In support, Appellant



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contends there was a fact issue whether the tag lamp on his truck was operating prior to

the traffic stop. He also asserts the trial court erred in its determination that he had been

convicted of a felony in 1989 and improperly denied him an instruction on the availability

of community supervision.


       The State asserts there was no fact issue at trial whether Appellant’s tag lamp was

legally operable prior to the traffic stop and concedes error on Appellant’s second issue

acknowledging that, although Appellant pled guilty to a felony in 1989, the trial court

adjudged and punished his crime as a Class A misdemeanor under section 12.44(a) of the

Texas Penal Code.


                                   Standard of Review


       In analyzing a jury-charge issue, we first determine if error occurred and, if so, we

conduct a harm analysis. Ngo v. State, 175 S.W.3d 738, 743 Tex.Crim.App. 2005). The

degree of harm required for reversal depends on whether an appellant has preserved error

by objection. Id. A jury-charge error requires reversal when, after proper objection, the

appellant suffers “some harm” to his rights. Id.; Almanza v. State, 686 S.W.2d 157, 174

(Tex.Crim.App. 1985) (op. on reh’g), reaffirmed, Middleton v. State, 125 S.W.3d 450, 453

(Tex.Crim.App. 2003).




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       Article 38.23 Instruction


       Article 38.23 of the Code of Criminal Procedure prohibits the admission of evidence

against an accused in a criminal trial if the evidence was obtained in violation of the Texas

or United States Constitutions or state laws. See Tex. Code Crim. Proc. Ann. art. 38.23(a)

(Vernon 2005).1 Prior to the submission of a jury instruction under article 38.23, the

defendant must meet the following three requirements:


       (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.


See art. 38.23(a); Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.Crim.App. 2008);

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


       As to the first requirement, Appellant maintains that there was a fact issue as to

whether or not his tail lamp sufficiently illuminated the rear license plate so as to be clearly

legible from fifty feet.   In that regard, Officer Gladmann consistently testified that

Appellant’s tag lamp did not illuminate his rear license plate sufficiently to be legible fifty

feet away. Section 547.322(f) of the Texas Transportation Code requires that vehicles

have a tail lamp or separate lamp constructed and mounted to emit a white light that: (1)



       1
       For convenience, provisions of the Texas Code of Criminal Procedure will
hereinafter be cited as “article ___.”

                                               6
“illuminates the rear license plate,” and (2) “makes the plate clearly legible at a distance

of 50 feet from the rear.” Tex. Transp. Code Ann. § 547.322(f) (Vernon 1999). Whether

or not the lamp itself was operable is of no consequence so long as the officers stopped

Appellant because there was insufficient illumination for the tag to be seen fifty feet away.

Officer Gladmann’s testimony in that respect was undisputed. See Madden, 242 S.W.3d

at 517-18. As such, Appellant failed to raise a fact issue material to the lawfulness of the

challenged conduct in obtaining the evidence. Issue one is overruled.


       Community Supervision Instruction


       Article 42.12 of the Texas Code of Criminal Procedure permits a jury to recommend

to a judge that he or she suspend the imposition of a sentence and place the defendant

on community service. Tex. Code Crim. Proc. Ann. art. 42.12, § 4(a) (Vernon Supp. 2008).

Pursuant to article 42.12, § 4(e), Appellant asserted eligibility for the jury’s recommendation

by filing a written, sworn motion prior to trial indicating that he had not previously been

convicted of a felony in this state or any other state.


       In 1988, Appellant had been charged with the third-degree felony of burglary of a

motor vehicle. However, in March of 1989, Appellant reached a plea agreement whereby

the district attorney agreed to reduce Appellant’s punishment to a misdemeanor in

exchange for a statement. Subsequently, Appellant pled guilty to the third-degree felony

and the trial court determined that the circumstances of Appellant’s case fell within the



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purview of section 12.44(a) of the Texas Penal Code.2 Thereafter, the trial court entered

a conviction of guilt for a Class A misdemeanor and punished Appellant accordingly.


       During the punishment phase of this case, the State opposed Appellant’s request

for an instruction regarding community supervision asserting that Appellant had been

convicted of the third-degree felony of burglary of a motor vehicle in 1989. The trial court

overruled Appellant’s request. The State now confesses error. Having reviewed the

judgment issued March 1, 1989, by the 72nd District Court of Lubbock County, in

proceedings regarding the charge of felony burglary of a motor vehicle, we agree that “a

conviction of guilt for a Class A Misdemeanor [was] entered.” Appellant’s second issue is

sustained.


       Harm Analysis


       Because Appellant did object to the trial court’s refusal to instruct the jury as to

Appellant’s eligibility for community supervision, we must analyze the error from a “some

harm” perspective. Eligibility for community supervision is a valuable right and the issue


       2
           In 1989, section 12.44(a), stated, in pertinent part, as follows:

       A court may set aside a judgment or verdict of guilty of a felony of the third
       degree and enter a judgment of guilt and punish for a Class A misdemeanor
       if, after considering the gravity and circumstances of the felony committed
       and the history, character, and rehabilitative needs of the defendant, the
       court finds that such sentence would best serve the ends of justice.

Act of May 24, 1973, 63rd Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 908 (current version
at Tex. Penal Code Ann. § 12.44 (Vernon Supp. 2008)).

                                                 8
should be submitted to the jury whenever the record reasonably supports the request.

Thompson v. State, 604 S.W.2d 180 (Tex.Crim.App. 1980). The trial court’s denial of this

statutory right deprived the jury of the opportunity to even consider granting Appellant

community supervision, thereby certainly causing him some harm.


                                     Conclusion


       Accordingly, we affirm the judgment of conviction, reverse the judgment as to

punishment, and remand the cause to the trial court for new punishment proceedings

consistent with this opinion.




                                               Patrick A. Pirtle
                                                   Justice

Do not publish




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