Gregory Sawyer v. The State of Texas--Appeal from County Crim Court No 2 of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

GREGORY SAWYER, )

) No. 08-05-00125-CR

Appellant, )

) Appeal from the

v. )

) County Criminal Court #2

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# MB0358482-B)

)

O P I N I O N

Appellant Gregory Sawyer appeals his conviction for the offense of driving while intoxicated. The jury found Appellant guilty as charged in the information and the trial court sentenced Appellant to 180 days confinement in the Dallas County Jail, probated to 24 months of community supervision, and fined him $800. In his sole issue, Appellant contends the trial court erred in failing to instruct the jury pursuant to Article 38.23 of the Texas Code of Criminal Procedure. We affirm.

FACTS

On the evening of August 15, 2003, Dallas Police Officer Thomas Castro and his partner were on patrol on Matilda when Officer Castro observed a Ford Escort squeal its tires as it made a left turn in front of his patrol car. He noticed the vehicle because of the loud squealing of the tires. The officers made a u-turn and initiated a traffic stop. Officer Castro believed he had reasonable suspicion to pull over the vehicle based on his observation of the driver squealing his tires off, which he believed was a violation of the city=s anti-noise ordinance.

Due to heavy traffic on the road, both officers approached the vehicle on the passenger side to make initial contact. The passenger in the vehicle had a strong odor of alcohol on his breath and bloodshot eyes. Officer Castro approached the driver=s side of the vehicle and made contact with the driver, later identified as Appellant. Upon request, Appellant provided his driver=s license and proof of insurance. Officer Castro observed that Appellant had a strong odor of alcohol on his breath and blood shot eyes. Officer Castro asked Appellant if he had been drinking and Appellant told the officer that he had three or four drinks. Officer Castro returned to his patrol car and requested a DWI police unit to the location. Officer Brett Taite responded and conducted field sobriety tests. Based on Appellant=s performance of the tests, Officer Taite formed the opinion that Appellant was intoxicated and did not have the normal use of his physical and mental faculties. Officer Taite placed Appellant under arrest for driving while intoxicated.

On cross-examination, Officer Castro testified that there was a stop sign at the intersection where he first observed Appellant=s vehicle. Officer Castro did not see Appellant stop, but he did not have any reason to believe that Appellant had ran the stop sign. Rather, Officer Castro believed that Appellant had violated the anti-noise ordinance of the Dallas City Code by making an offensive noise when he squealed his tires. The officer admitted that he only heard screeching tires, not the other types of noises specifically listed in the ordinance. According to Officer Castro, the ordinance applies to any noise that could be disturbing.[1] The only violation that Officer Castro observed was the squealing of the tires. Appellant was initially stopped for the ordinance violation that Officer Castro had personally observed. Officer Castro admitted that he is not a citizen of the city of Dallas, and that to his knowledge, no citizen had called in a complaint about the squealing tires. However, based on previous experience, he knew of general complaints about vehicles racing and squealing their tires up and down the streets. Thus, he believed such noises where offensive to citizens.

Oscar Deleon was the passenger in Appellant=s vehicle on the night of the arrest. They went out to a bar that night, but Mr. Deleon did not see Appellant drink anything and Appellant did not exhibit any signs of intoxication. Appellant=s vehicle is a >91 or >92 Ford Escort. Mr. Deleon had done some research on the Consumer Report website and based on the data, he determined that the vehicle is a front wheel drive and does not have the ability to squeal tires. Mr. Deleon learned that the vehicle can go from 0 to 60 in 12.5 seconds and does not have enough power to attempt a quick get away.

According to Mr. Deleon, when they were stopped they were looking for a place to park and Appellant was driving fairly slow. Prior to the police pulling them over, Appellant had stopped at the stop sign and made a left onto Matilda going north. Appellant did not squeal his tires or make a loud noise, however, some gravel hit the underside of the vehicle. Mr. Deleon was certain that there was no squealing of tires or other loud noise. When they were stopped by police it felt sudden and unexpected.

Appellant=s father, Peter Sawyer, testified that he had lent Appellant his 1994 Ford Escort in August 2003. Mr. Sawyer had owned it for at least three years and had driven it on several occasions. The tires never squealed when he drove it. Mr. Sawyer testified that it is a front-end drive vehicle, it is an economical car, and that it would be very difficult to make the tires squeal because it does not have any power.

DISCUSSION

Article 38.23 Instruction

In his sole issue, Appellant argues that the trial court erred in failing to instruct the jury pursuant to Article 38.23. Specifically, Appellant complains of the trial court=s refusal to include his requested instruction based on Article 38.23. When an appellant alleges jury charge error on appeal, our first task is to determine whether error actually exists in the charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(Opin. on reh=g). Article 38.23(a) provides for the exclusion of unlawfully obtained evidence and requires the trial court to instruct the jury that such evidence shall be disregarded if it believes, or has a reasonable doubt, that the evidence was obtained in violation of constitutional or statutory provisions. See Tex.Code Crim.Proc.Ann. art. 38.23(a)(Vernon 2005). If the defendant successfully raises a factual dispute concerning the manner in which the evidence was obtained, inclusion of a properly worded Article 38.23(a) instruction is mandatory. Pickens v. State, 165 S.W.3d 675, 680 (Tex.Crim.App. 2005); Bell v. State, 938 S.W.2d 35, 48 (Tex.Crim.App. 1996). Such an instruction directs the jury to disregard the evidence if it resolves the factual dispute in the defendant=s favor. Balentine v. State, 71 S.W.3d 763, 773-74 (Tex.Crim.App. 2002). A fact issue concerning whether the evidence was legally obtained may be raised A>from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable.=@ Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004).

In pertinent part, the court=s charge to the jury contained the following Article 38.23 instruction:

You are instructed that an officer is permitted to make a temporary investigative detention of a defendant if the officer has a reasonable suspicion that some activity out of the ordinary is 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.

The offense of noises interfering with enjoyment of property or public peace and comfort is defined as follows:

No person shall make or cause to be made any loud and raucous noise in the city which is offensive to the ordinary sensibilities of the inhabitants of the city, which noise renders the enjoyment of life or property uncomfortable or interferes with public peace and comfort,

. . .

Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that Officer Castro had a reasonable suspicion based on articulable facts to temporarily detain the defendant, Gregory Sawyer, for the offense of noises interfering with enjoyment of property or public peace and comfort, you may next consider whether or not Officer Castro then had cause to investigate further; however, if you do not so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, then you will not consider the question of whether or not the defendant was driving while intoxicated and enter a verdict of not guilty based upon no reasonable suspicion to detain.

Instead, Appellant had requested the following jury instruction, which was read into the record:

No evidence obtained or derived by a police officer result [sic] of unlawful arrest should be admissible and evidence against an accused.

An officer is permitted, however, to continue to contain the motorist if the officer has probable cause to believe and does believe that a criminal offense has occurred.

. . .

By the term >probable cause= as used herein, is meant where the facts and circumstances within the officer=s knowledge and under which he has reasonable trustworthy information or sufficient in itself to warrant a person with reasonable caution to believe an offense has been or is being committed.

. . .

Now, bearing in mind the foregoing instructions, if you find from the evidence or if you have a reasonable doubt thereof that on or about the 15th day of August, 2003, that Officer Castro did have probable cause that the defendant, Gregory Sawyer, violated . . . Dallas Anti Noise City Code Number 3401,30.2 [sic] . . . then the detention should be illegal.

Therefore, if you find the facts to be, or if you have a reasonable doubt thereof, you will disregard all the testimony and evidence and won=t consider such testimony and evidence for any purposes and say by your verdict not guilty.

The State concedes that the conflicting testimony of Officer Castro and Mr. Deleon raised a factual dispute concerning the legal basis for the traffic stop. However, it asserts that Appellant=s requested instruction would have required the jury to find that Officer Castro had probable cause to stop Appellant before it could consider any evidence obtained subsequent to the stop, which is contrary to the law under the circumstances of this case. We agree.

An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005); see also Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). Reasonable suspicion exists if the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. Thus, the police officer in this case did not need probable cause to stop the vehicle; rather he needed only reasonable suspicion based on articulable facts. See Stone v. State, 703 S.W.2d 652, 654 55 (Tex.Crim.App. 1986), overruled in part on other grounds by Atkinson v. State, 923 S.W.2d 21 (Tex.Crim.App. 1996). Therefore, Appellant=s requested instruction is contrary to the law. See Thacker v. State, 889 S.W.2d 380, 399 (Tex.App.--Houston [14th Dist.] 1994, pet. ref=d); Simmons v. State, 741 S.W.2d 595, 597 (Tex.App. -Dallas 1987, pet. ref=d); see also Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994)(the charge must include an accurate statement of the law).

Although the trial court denied the requested instruction, it did charge the jury on the issue of the unlawfulness of the stop, which the State has conceded was raised by the evidence at trial. On appeal, Appellant does not complain about the instruction that was submitted to the jury.[2] In reviewing the charge, we find that the court=s instruction stated the applicable law on the anti-noise ordinance and reasonable suspicion. Further, it instructed the jury not to consider the issue of whether or not Appellant was driving while intoxicated, that is, to disregard all evidence of Appellant=s alleged intoxication, and enter a not guilty verdict if it found there was no reasonable suspicion to detain. We conclude that the instruction satisfied Article 38.23(a) and therefore, the trial court did not err in refusing to include the probable cause instruction requested by Appellant. Appellant=s sole issue is overruled.

We affirm the trial court=s judgment.

March 2, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Chapter 30, Section 30-1 of the Dallas City Code states that:

No person shall make or cause to be made any loud and raucous noise in the city which is offensive to the ordinary sensibilities of the inhabitants of the city, which noise renders the enjoyment of life or property uncomfortable or interferes with public peace and comfort. (Ord. 13744).

Section 30-2 provides a non-exclusive list of acts which are deemed in violation of the chapter.

[2] Appellant claims on appeal that his trial counsel Aobjected that the charge failed to include an Article 38.23 instruction.@ However, in reviewing the record, we observe that his trial counsel made no such objection. Rather, Appellant=s trial counsel requested that a different instruction than the one given in the proposed charge. Specifically, his counsel asked that the requested instruction, Areplace the language you have in this particular Charge.@