AFFIRM; and Opinion Filed June 6, 2013.




                                          S In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                        No. 05-11-01669-CR

                               GARRETT VOGEL, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the County Criminal Court No. 8
                                   Dallas County, Texas
                            Trial Court Cause No. 07-66820-T

                               MEMORANDUM OPINION
                          Before Justices Bridges, O’Neill, and Murphy
                                   Opinion by Justice O’Neill
       Appellant Garrett Vogel appeals his conviction for driving while intoxicated. In a single

issue, appellant contends the trial court erred in refusing to instruct the jury regarding whether

reasonable suspicion existed to detain him for a DWI investigation. For the following reasons,

we affirm the trial court’s judgment.

       At 1:00 a.m., Officer David Coffie stopped appellant because one of his front headlights

was out. According to Coffie, appellant smelled of alcohol. Appellant told the officer he had

had a glass of wine or a gin and tonic. Coffie requested a DWI squad-member to investigate

appellant for possible DWI. Officer Bryan responded to Coffie’s request. Bryan testified

appellant smelled strongly of alcohol and that he had blood-shot eyes. Appellant failed the

horizontal gaze nystagmus test and the walk-and-turn test. He was unable to perform the one-

legged stand. Bryan arrested appellant for DWI.
       Appellant testified in his own defense. He claimed he had had two alcoholic beverages

earlier that evening. He said he had a gin and tonic at 7:00 p.m. and a glass of wine at 8:00 p.m.,

followed by dinner. According to appellant, he could not have still smelled of alcohol hours later

when he was stopped. To explain his performance on the field sobriety tests, appellant claimed

he had been sick that day, had had a recent eye surgery, and was on several medications.        He

said it was also cold and the ground was uneven.

       After the close of evidence, appellant requested an article 38.23 instruction. See TEX.

CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). Specifically, he requested the trial court to

instruct the jury not to consider evidence of the field sobriety tests unless it first concluded

Coffie had reasonable suspicion to detain him for the tests.         The trial court refused the

instruction, and the jury found appellant guilty of DWI.

       On appeal, appellant contends the trial court’s refusal to give the article 38.23 instruction

was error. Error in failing to include a 38.23 instruction is charge error subject to an Almanza

harm analysis. Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996). We reverse for

properly preserved charge error only if there is “some harm” to appellant. Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985). When considering the actual degree of harm, we

examine (1) the entire jury charge, (2) the state of the evidence, including the contested issues

and weight of probative evidence, (3) the argument of counsel, and (4) any other relevant

information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.

       A trial court must give an article 38.23 instruction if the evidence raises a disputed fact

issue about whether evidence was lawfully obtained. TEX. CODE CRIM. PROC. ANN. art. 38.23

(West 2005); Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). According to

appellant, the disputed fact issue here was whether Coffie really smelled alcohol on him, a fact

he contends was essential to justify the detention.   Assuming, without deciding, the trial court

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erred in failing to submit this question to the jury, we conclude the record affirmatively

demonstrates appellant suffered no actual harm from the alleged error.

       As noted above, Coffie testified that appellant smelled of alcohol. Appellant testified this

was not possible because he had only two drinks hours earlier. The potential for harm in failing

to instruct the jury flows from the possibility that the jury did not believe Coffie’s testimony, and

instead believed appellant’s. But the jury found appellant guilty of DWI, thus finding beyond a

reasonable doubt that appellant was intoxicated. The jury could not have believed the very

evidence appellant asserts raised a disputed material fact issue and still found him guilty of the

offense. Therefore, appellant did not suffer any harm from the failure to give the instruction.

See Porter v. State, 255 S.W.3d 234, 243 (Tex. App.— Waco 2008, pet. ref’d) (error in denying

38.23 instruction did not cause defendant “some harm” where jury’s conviction of appellant for

evading arrest or detention showed the jury necessarily found defendant’s detention or arrest

lawful); Wilkerson v. State, 933 S.W.2d 276, 281 (Tex. App.—Houston [1st Dist.] 1996, pet.

ref’d) (error in denying 38.23 instruction did not cause defendant “some harm” where jury must

have rejected fact dispute that warranted instruction when it found the defendant guilty of the

offense). We resolve the sole issue against appellant and affirm the trial court’s judgment.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O'NEILL
                                                      JUSTICE
Do Not Publish
TEX. R. APP. P. 47

111669F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

GARRETT VOGEL, Appellant                              On Appeal from the County Criminal Court
                                                      No. 8, Dallas County, Texas
No. 05-11-01669-CR         V.                         Trial Court Cause No. 07-66820-T.
                                                      Opinion delivered by Justice O’Neill.
THE STATE OF TEXAS, Appellee                          Justices Bridges and Murphy participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 6th day of June, 2013.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O'NEILL
                                                     JUSTICE




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