JUSTIN STREITBERGER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed May 3, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00711-CR
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JUSTIN STREITBERGER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Criminal Court No. 1
Dallas County, Texas
Trial Court Cause No. MB-0761888-A
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OPINION
Before Justices Moseley, Bridges, and Fillmore
Opinion By Justice Fillmore
        Appellant Justin Streitberger was convicted of misdemeanor driving while intoxicated (DWI) and sentenced to 150 days' confinement in the Dallas County jail, probated for fifteen months, and assessed a $1000 fine. See Tex. Penal Code Ann. § 49.04 (Vernon 2003). In a single issue, appellant asserts the trial court erred in not submitting an article 38.23(a) instruction to the jury. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). We affirm.
Background
        In the early hours of September 20, 2007, Dallas Police Officer Anthony Foster, a member of the Dallas Police Department for 18 years and for 7 years a member of a team assigned to investigate DWIs, was on routine patrol. While driving northbound on Central Expressway's service road he saw appellant's car traveling at a high rate of speed. Foster “paced” appellant's car, following appellant's vehicle at a speed matching the speed of appellant's vehicle, and determined that appellant was driving at speeds between sixty and sixty-five miles per hour in a posted thirty- five miles per hour speed zone. Appellant safely and properly pulled over when signaled to do so by Foster.
        Appellant admitted to Foster that he had been speeding. Foster smelled a strong odor of alcoholic beverage on appellant's breath, and appellant admitted to drinking five alcoholic beverages called “Jack [Daniels] and Coke.” While appellant was seated in his vehicle, Foster used a lighted device to confirm appellant's eyes exhibited an involuntary jerking movement.
        Office Foster then had appellant exit his vehicle and administered three Standardized Field Sobriety Tests: the Horizontal Gaze Nystagmus (HGN), the walk-and-turn test and the one-leg stand. According to Foster, he administered the HGN test first because it was the most reliable in the sense that it was impossible for individuals to mask nystagmus   See Footnote 1  or build a tolerance that would permit hiding the nystagmus. Foster's undisputed testimony was that appellant exhibited all 6 possible indicia of intoxication on the HGN test, and exhibition of 4 clues on the HGN test is indicative of intoxication. The HGN test result indicated to Foster that he needed to continue his investigation. Appellant performed the walk-and-turn and the one-leg stand without clues indicating intoxication. Foster then administered a non-standardized Field Sobriety Test, asking appellant to recite the alphabet from “C” to “T.” Appellant had a slight “goof-up” on his first attempt, asked if he could redo it, and recited it correctly on the second attempt. Foster performed a portable breath test that indicated the presence of alcohol. Appellant was then placed under arrest for DWI. Foster testified he did so based upon appellant's eyes exhibiting all 6 possible indicia of intoxication on the HGN test.
        Appellant was transported to the Dallas County jail. After obtaining appellant's consent, Foster administered two breathalyzer tests, the results of which were admitted into evidence. Lori Fuller, technical supervisor from the Southwestern Institute of Forensic Science (SWIFS), testified that appellant's scores of .143 and .147 on the breathalyzer tests were both greater than the amount permitted under the law. Fuller also testified that based on her training and experience, it was possible for a person who had built up a tolerance for alcohol to have a .14 score on a breathalyzer test and still not exhibit physical signs of intoxication.
        The jury heard the testimony of appellant's witness Gary Harold Wimbish, a forensic toxicologist. With regard to appellant's failing the HGN test, Wimbish testified the HGN test does not measure alcohol content and failing an HGN test can be caused by factors other than alcohol. Wimbish testified the HGN test is invalid for indication of intoxication. Wimbish testified that when, as here, an individual fails an HGN test but passes the walk-and-turn and one-leg stand tests, he does not believe an officer would have probable cause to make an arrest for DWI. Wimbish stated, however, that an officer usually makes his determination to arrest “based on everything [the officer] collects in his information.”
        Appellant's counsel requested the trial court to include a probable cause instruction under article 38.23 of the code of criminal procedure in the jury charge. The trial court denied the request, and appellant's counsel objected to the denial of the request. The jury subsequently found appellant guilty of committing the offense of DWI. This appeal followed.   See Footnote 2 
Issue
        In his sole issue on appeal, appellant contends that the trial court erred when it overruled his request for a probable cause instruction under article 38.23. Appellant does not challenge the propriety of the initial traffic stop. Rather, appellant argues that he was entitled to a probable cause instruction because the evidence raised a fact question regarding the propriety of the arrest for DWI. Appellant asserts that in order to convict appellant of the DWI offense, the State had to show appellant was intoxicated prior to his arrest. Appellant contends that absent the evidence obtained from the illegal arrest, the State had no other evidence to prove the offense. Therefore, appellant asserts he was harmed by the trial court's refusal to include an instruction pursuant to article 38.23(a).
Standard of Review
        In reviewing an appellant's claim of charge error, we must first determine whether error exists. Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007); see also, Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If we find error, we must then determine whether the error caused sufficient harm to require reversal. Id. A jury-charge error requires reversal when, after proper objection, the appellant suffers “some harm” to his rights. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
Analysis
        Article 38.23(a) 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 laws. Tex. Code Crim. Proc. Ann. art. 38.23(a). The statute 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.
 
Id.
        If a defendant successfully raises a factual dispute over whether evidence was illegally obtained, inclusion of a properly worded article 38.23 instruction is mandatory. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). “To raise a disputed fact issue warranting an Article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question.” Id. at 513. A defendant must raise a factual dispute as to the manner in which the evidence was obtained. Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986); see also Hardin v. State, 951 S.W.2d 208, 210 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (citing Thomas, 723 S.W.2d at 707)). If the underlying facts are undisputed, no fact issue exists, and an instruction is not required. Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996)). See also Merriweather v. State, 501 S.W.2d 887, 891 (Tex. Crim. App. 1973) (where facts used by court to determine probable cause were uncontested, defendant not entitled to jury instruction concerning other contested facts that did not defeat finding of probable cause).
        “'Probable cause' for a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstances within the arresting officer's knowledge and of which he has reasonable trustworthy information are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense.” Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). “The test for probable cause is an objective one, unrelated to the subjective beliefs of the arresting officer, and it requires a consideration of the totality of the circumstances facing the arresting officer.” Id. (citing Maryland v. Pringle, 540 U.S. 366, 371 (2003)).
        Here, there was no “affirmative evidence of a disputed historical fact” relevant to the issue of probable cause to arrest appellant. See Madden, 242 S.W.3d at 516. Appellant has not raised a fact issue concerning the manner in which the evidence was obtained. The undisputed totality of the circumstances facing Foster at the time he arrested appellant for DWI included the following: appellant was stopped for speeding; appellant's breath smelled of alcohol and appellant admitted to Foster that he had consumed five mixed alcoholic drinks; and appellant exhibited indicia of intoxication on the HGN test.
        Appellant contends that he was entitled to an article 38.23 instruction because Wimbish's testimony established the invalidity of the HGN test as a basis for appellant's arrest for DWI. We disagree. There was no testimony by Wimbish that the HGN test was improperly administered in any respect. Wimbish did not dispute Foster's testimony that appellant failed the HGN test by exhibiting all six of the indicia of intoxication the test was designed to reveal. Rather, Wimbish questioned the reliability of HGN test results. He testified that nystagmus can be caused by factors other than alcohol and the HGN test does not measure blood alcohol content.
        With regard to the reliability of the HGN test, after consulting “literature concerning alcohol and its effects on eye movement, and considering case law from other jurisdictions addressing the reliability of the HGN Test,” the court of criminal appeals determined the technique employed in the HGN test to be a reliable indicator of intoxication. Emerson, 880 S.W.2d at 768. The court took “judicial notice of the reliability of both the theory underlying the HGN test and its technique.” Id. at 769. While a reliable indicator of intoxication, HGN evidence may not be used to quantify the defendant's blood alcohol content. Id. Here, Foster utilized the HGN evidence as an indicator of appellant's intoxication, not to measure appellant's blood alcohol content.
        Based on the undisputed facts regarding information collected by Foster in support of his determination of probable cause for arresting appellant, we conclude the trial court did not err in denying appellant's request for an article 38.23 jury instruction. See Madden, 242 S.W.3d at 510 (where no issue raised by evidence to require article 38.23 jury instruction, trial court acts properly in refusing request); see also Garza v. State, 126 S.W.3d 79, 86 (Tex. Crim. App. 2004) (legality of search or arrest is question of law, not fact, when essential facts concerning search or arrest not in dispute). Having so concluded, we need not perform a harm analysis.
 
Conclusion
        We resolve appellant's sole issue against him and affirm the trial court's judgment.
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
090711F.U05
 
Footnote 1 Nystagmus is an “involuntary rapid oscillation of the eyeballs in a horizontal, vertical, or rotary direction.” Emerson v. State, 880 S.W.2d 759, 765 (Tex. Crim. App. 1994). HGN “is a variety of nystagmus that occurs when an individual's eyes are deviated to the lateral extreme.” Id.
Footnote 2 In his motion for new trial, appellant raised the issue of the trial court's denial of the article 38.23 instruction in the jury charge. The trial court again concluded the instruction was not warranted and denied the motion for new trial.