William Thomas Corley v. The State of Texas--Appeal from of County

IN THE

TENTH COURT OF APPEALS

No. 10-97-014-CR

WILLIAM THOMAS CORLEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law No. 2

Johnson County, Texas

Trial Court # M9500483

O P I N I O N

Appellant, William Thomas Corley, on January 15, 1995, was stopped for alleged traffic violations by one Officer Crum and subsequently was arrested for and charged by information with the offense of Driving While Intoxicated. Appellant pled not guilty and was tried by a jury, which found him guilty and assessed his punishment at a $1,500 fine, six (6) months in jail probated for two years, $328 court costs and mandatory attendance at a Driving While Intoxicated School.

Appellant comes to this court on one point of error, asserting that the trial court erred in failing and refusing to charge the jury under Article 38.23 of the Texas Code of Criminal Procedure.

Article 38.23, supra, 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.

(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

The main question before us to determine is whether under the facts, an issue concerning the validity of the officer s stop of the Appellant is raised by the evidence. Where an issue of fact is raised concerning the validity of an arrest, the Appellant has a statutory right to have the jury charged concerning such issue. See Jordan v. State, 562 S.W.2d 472 (Tex. Crim. App. 1978).

The terms of Article 38.23 are clearly mandatory; the only issue being whether under the facts of a particular case an issue concerning the validity of an arrest is raised by the evidence. Where no such issue is raised by the evidence, the trial court acts properly in refusing such a request. See Fisher v. State, 493 S.W.2d 841 (Tex. Crim. App. 1973); Stein v. State, 514 S.W.2d 927 (Tex. Crim. App. 1974). However, where such an issue of fact is raised, the defendant has a statutory right to have the jury charged.

In the case before us a portion of the arresting officer s testimony relevant to the validity of the stop was never denied or contradicted by the Appellant; therefore we will affirm the trial court s judgment. Here the Appellant did dispute the arresting officer s testimony that he (the Appellant) was weaving and failed to maintain a single lane of travel. However, the arresting officer had also testified that Appellant did not use his turn signal when changing lanes which was not disputed.

Appellant admitted during his testimony that he changed from the right hand southbound lane to the left hand lane before being pulled over and did not dispute the officer s testimony that he had failed to use his turn signal. Instead, Appellant made an issue that he was not ticketed for changing lanes without giving a signal.

Section 545.104 of the Texas Transportation Code provides that an operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position. The arresting officer had every right to detain or arrest Appellant for committing this violation within his view. Tex. code crim. proc. ann. art. 14.01(b).

It is not relevant that Appellant was not ticketed for changing lanes without a signal. As long as an actual violation occurs, law enforcement officials are free to enforce the laws and detain a person for that violation. Garcia v. State, 827 S.W.2d 937 (Tex. Crim. App. 1992); Byrd v. State, 835 S.W.2d 223, 225 (Tex. App.-Waco 1992, no writ).

The arresting officer testified, and Appellant did not deny that Appellant did not use his turn signal when he changed lanes. Thus the stop was proper.

A defendant is entitled to an instruction under Article 38.23 only where the evidence at trial raises a factual issue concerning whether evidence has been obtained in violation of the law. Hamilton v. State, 831 S.W.2d 326, 331 (Tex. Crim. App. 1992). Where essential facts concerning an arrest are not in dispute, as here, the legality of the arrest is a question of law for the court, not a question of fact. Cambell v. State, 492 S.W.2d 956, 958 (Tex. Crim. App. 1973); Brooks v. State, 707 S.W.2d 703, 706 (Tex. App.-Houston [1st Dist.] 1986, writ ref d).

For the reasons hereinabove stated, Appellant was not entitled to an Article 38.23 instruction. We accordingly overrule Appellant s sole point of error and affirm the judgment of the trial court.

JOHN A. JAMES, JR. Justice (Retired)

Before Chief Justice Davis,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed November 5, 1997

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