Houston, Norman Davis v. The State of Texas--Appeal from County Court of Andrews County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

NORMAN HOUSTON, )

) No. 08-01-00458-CR

Appellant, )

) Appeal from the

v. )

) County Court

THE STATE OF TEXAS, )

) of Andrews County, Texas

Appellee. )

) (TC# 00-0006)

)

O P I N I O N

Appellant, Norman Houston, appeals a conviction for the misdemeanor offense of Driving While Intoxicated, Subsequent Offense. A jury found Appellant guilty and the trial court assessed punishment of one year confinement, probated for two years, with a fine of $750.

Appellant now raises three issues on appeal. We reverse and remand.

Appellant was driving home after an evening with his girlfriend on December 24, 1999. He was stopped at 2:39 a.m. by Sergeant Barry Hughes, a patrol officer with the Andrews Police Department, who witnessed his automobile weaving and crossing the white striped line. The patrol officer suspected Appellant of driving while intoxicated. When Officer Hughes spoke to Appellant, he smelled a strong odor of alcohol and noticed that Appellant=s speech was slurred and his eyes were bloodshot and glassy. The officer administered three field sobriety tests and Appellant failed to perform each test properly. Appellant was arrested. He declined to take a breath test. Appellant was later charged by information with the misdemeanor offense of driving while intoxicated, subsequent offense.

At trial, the State called Officer Hughes to testify. The defense called an optometrist, Dr. Paul Hayter, to testify about Appellant=s vision and the horizontal gaze nystagmus test. Appellant also testified on his own behalf. Ultimately the jury found Appellant guilty. After a sentencing hearing, the trial court assessed punishment.

Appellant raises three issues for our review: (1) whether the trial court erred in denying Appellant=s motion to suppress; (2) whether the trial court erred in admitting certain testimony from the arresting officer; and (3) whether the trial court erred in denying Appellant=s requested jury instruction. We find the third issue dispositive, and begin our discussion with the court=s denial of Appellant=s requested jury instruction.

With this issue, Appellant argues the trial court committed reversible error by denying his requested jury charge. Appellant argues the instruction was required under Texas Code of Criminal Procedure Article 38.23.

Article 38.23(a) of the Texas Code of Criminal Procedure entitles a criminal defendant to have a jury determine whether a police stop was legal if the evidence on that point is controverted and an instruction is requested. See Tex.Code Crim.Proc.Ann. art. 38.23(a) (Vernon Supp. 2003); Reynolds v. State, 848 S.W.2d 148, 149 (Tex.Crim.App. 1993); Espericueta v. State, 838 S.W.2d 880, 883 (Tex.App.--Corpus Christi 1992, no pet.). This section of the Code provides:

(a) 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.

Tex.Code Crim.Proc.Ann. art. 38.23(a). In this case, Appellant requested submission of such an instruction. The requested charge was read into the record by defense counsel at the close of evidence. Thus, the only issue is whether the evidence concerning the legality of the stop was controverted. Tex.Code Crim.Proc.Ann. art. 38.23(a); Espericueta, 838 S.W.2d at 883; Jacobs v. State, 734 S.W.2d 704, 705 (Tex.App.--Dallas 1987, pet. ref=d).

At trial, the State called Officer Hughes to testify. He testified he first noticed Appellant=s vehicle after turning onto the 300 block of North Main in Andrews. He was traveling northbound behind three other vehicles. He was directly behind a white Ford pickup truck, which as he later learned, was driven by Appellant. Officer Hughes explained that North Main is a four-lane roadway with a double line divider. The two northbound lanes are divided by a white stripe. The patrol officer told the jury that he observed the white pickup truck Acrossing over into the right northbound land and back over in the left-hand northbound lane.@ He noted that no turn signal was used and there was no indication that Appellant was trying to go around anything. The prosecutor questioned Officer Hughes as to whether the truck completely crossed over into the second lane. The officer responded, ANot all four tires. Just two tires.@ Then the prosecutor asked, ASo at some point it could be straddling the middle . . . dividing stripe?@ To which, Officer Hughes responded affirmatively.

Appellant also testified. He stated:

Defense: And go ahead and tell the members of the jury, when you arrived around the 300 block of North Main here in Andrews, around 2:39 or so, between 2:30 and 2:45 the morning of December 24th, how did you drive? What was your focus on?

Appellant: I was coming in on the inside lane. Actually, it was maybe a couple of blocks further north. I just reached down to adjust my radio. I was listening to a song. I reached down to adjust the volume back down and I swerved ever so slightly. And I pulled it back like that.

I don=t recall getting out of my lane though. And then the next thing I knew, I was looking -- first thing I did was look in my rearview mirror, just to make sure there wasn=t anyone beside me or coming up behind me.

. . .

Defense: When you adjusted the volume on this radio in the pickup truck, was there any vehicle right to your right?

Appellant: No. There was two cars, one in front of me -- directly in front of me, and in the right-hand lane in front of me further. Both cars were in front of me.

Defense: They were pretty well in front of you?

Appellant: Yes.

Defense: When you first saw the patrol lights come on, did you pull over right away?

Appellant: Not right away. I just -- he was pretty far back there. I didn=t know who he was after, really.

But I did -- a little ways further in that block, I did go ahead and signal and pull over in the right-hand lane.

When he came up behind me, I knew he was after me, so I went ahead and turned in the Beall=s parking lot. We were about that area.

Later during cross-examination, the following exchange occurred:

Prosecutor: And is it my understanding that the reason you were drifting into the other lane is because you were adjusting your radio? Is that what you said?

Appellant: I reached down to adjust the volume on the radio, and I drifted a bit. I never really, in my opinion, got out of my lane, inside lane.

Prosecutor: I thought I understood you to say something earlier about how you checked to see if there was anyone next to you before you did your radio?

Appellant: No. I did that afterwards. I just checked my rearview mirror. As soon as I drifted a bit, when I reached down to adjust the radio and I jerked it back like that.

Prosecutor: So you knew you had drifted?

Appellant: Well, as soon as I looked up, I knew I drifted a little bit, yes, so I pulled it back.

Under Article 38.23, a trial court is required to include a properly worded instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained. Tex.Code Crim.Proc.Ann. art. 38.23(a); Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App. 1986). In this case, Officer Hughes stated that he observed Appellant=s vehicle crossing over into the right northbound lane and back over in the left-hand northbound lane. He clearly testified that two of the tires crossed into the other lane and at some point, the car was straddling the dividing stripe. In contrast, Appellant testified on both direct and cross-examination that he never got outside of his lane. Appellant=s account of the events was contradictory to that of Officer Hughes. As such, a fact question was raised as to the underlying legality of the traffic stop. Accordingly, Appellant=s requested instruction was proper. Tex.Code Crim.Proc.Ann. art. 38.23(a); Murphy v. State, 640 S.W.2d 297, 299 (Tex.Crim.App. 1982). The trial court=s denial of the instruction was erroneous. Murphy, 640 S.W.2d at 299.

Appellant objected to the court=s charge and requested an Article 38.23 instruction. Accordingly, this error requires reversal if he suffered Asome harm@ from the omission. See Gerron v. State, 57 S.W.3d 568, 572 (Tex.App.--Waco 2001, no pet.); Atkinson v. State, 934 S.W.2d 896, 897 (Tex.App.--Fort Worth 1996, no pet.); see also Atkinson v. State, 923 S.W.2d 21, 27 (Tex.Crim.App. 1996)(Article 36.19 harm standard applies in cases where Article 38.23 instruction erroneously omitted); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh=g)(construing Article 36.19).

The record contains no evidence of Appellant=s guilt independent of that obtained as a result of the traffic stop. Accordingly, we must conclude that he suffered Asome harm@ as a result of the omission of an Article 38.23 instruction from the charge. See Gerron, 57 S.W.3d at 572; Vrba v. State, 69 S.W.3d 713, 719 (Tex.App.--Waco 2002, no pet.). Appellant=s third issue on appeal is sustained.

We reverse and remand for a new trial.

November 27, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 5

McClure, J., Chew, J., and Preslar, C.J. (Ret.)

Preslar, C.J. (Ret.)(Sitting by Assignment)

(Do Not Publish)