DIANNE RENEE BECKWITH, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 11, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00413-CR
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DIANNE RENEE BECKWITH, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 1
Collin County, Texas
Trial Court Cause No. 001-84750-07
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MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Murphy
Opinion By Justice Murphy
        Dianne Renee Beckwith appeals her jury conviction for misdemeanor driving while intoxicated. In two issues, she asserts the trial court erred in (1) not submitting a jury instruction as to the legality of the incident that led to her arrest and (2) denying, without a hearing, her motion for new trial. We affirm.
Background
        Beckwith was driving in a shopping center parking lot when she stopped her car in what she thought was a parking space. Instead, she actually stopped in a drive-through lane. Beckwith had been drinking with friends at a pub in the shopping center and thought she “was fine” to drive when she left the pub around 1:00 a.m. After driving no more than a half-mile, she decided it would be better to stop and “not risk it.” Frisco police sergeant Jeff Haynes was following Beckwith, after receiving a report from a pub patron that Beckwith was possibly intoxicated. When Beckwith stopped, Haynes stopped behind her and turned on his spotlight used for lighting and safety. Beckwith became aware of the spotlight after she stopped her car. Haynes got out of his car and, as he approached Beckwith's car, Beckwith got out and walked to meet him. Haynes smelled alcohol on Beckwith's breath and noticed her speech was slurred. Beckwith told Haynes she had been drinking, admitted she was intoxicated, and said she had stopped her car to ask for a cab. Haynes decided to conduct three field sobriety tests-the horizontal gaze nystagmus (HGN), walk and turn, and one-leg stand. Due to Beckwith's complaints about her ankle, she completed only the HGN test. Haynes testified in detail that Beckwith exhibited all six clues on the HGN test. Beckwith also stated more than once that Haynes was wasting his time because “she knew that she had drank too much.” Based on the report of the pub patron, the results of the HGN, Beckwith's slurred speech, the smell of alcohol, Beckwith's failure to park in a parking space, and her admissions, Haynes concluded Beckwith was intoxicated and arrested her.
        Beckwith moved to suppress her statements and other evidence obtained during the interaction with Haynes. Confirming at the suppression hearing that her only challenge was to the stop and approach, Beckwith argued her arrest was unlawful due to lack of reasonable suspicion to stop her. Haynes, as the sole witness at the hearing, explained why he followed Beckwith and stopped behind her after she stopped. He testified he observed no traffic violations and had no reason to stop her, clarifying that incidents in parking lots are not traffic violations.
        The trial court denied Beckwith's suppression motion, concluding that at the time Haynes “approached and began speaking with Dianne Beckwith he had not stopped her, it was merely an encounter.” The trial court concluded alternatively that Haynes had reasonable suspicion to detain Beckwith based on the pub patron's report that Beckwith was possibly intoxicated, the time of night and location, and Beckwith's stopping in a driving lane of the parking lot.
        At trial, Beckwith asked for acquittal in opening statement, asserting lack of reasonable suspicion to stop her. After the State called Haynes and the pub patron as witnesses and rested its case, Beckwith moved for instructed verdict, again claiming failure of the State to prove reasonable suspicion. The trial court denied the motion and Beckwith testified as the sole defense witness. She testified she believed Haynes was going to arrest her when she saw him stop behind her, turn on his spotlight, and approach her car; she felt she was not free to leave.
        Before submission to the jury, Beckwith requested an article 38.23(a) jury instruction directing the jury to disregard Beckwith's admissions and other evidence gathered during the interaction with Haynes if the jury believed the evidence had been obtained unlawfully.   See Footnote 1  Beckwith asserted her personal belief that she was not free to leave created a fact issue as to the legality of the interaction. The trial court denied the request, concluding the initial interaction was an encounter as a matter of law under Martin v. State, 104 S.W.3d 298 (Tex. App.-El Paso 2003, no pet.).
        The jury deliberated for parts of two days and, after sending a note to the judge stating they were deadlocked three to three, an Allen charge   See Footnote 2  was given. After requesting and receiving Beckwith's testimony for review, the jury returned a guilty verdict. The trial court pronounced an agreed sentence of 120 days in jail, suspended for twelve months, and a $700 fine.
        Beckwith timely moved for a new trial based on the trial court's refusal of an article 38.23(a) jury instruction and based on a juror's contact with Beckwith's attorney the day after the verdict. Beckwith claimed the juror had e-mailed counsel regarding concerns about the verdict. Yet Beckwith failed to specify the concerns, attach the e-mail, or state what information the juror shared. Beckwith's supporting affidavit states in its entirety, after identifying the affiant-counsel: “I have a good faith belief that the information contained herein this affidavit is true and correct.” The trial court denied the motion without a hearing, and Beckwith appealed.
        
Article 38.23(a) Jury Instruction
        We examine Beckwith's first issue of alleged jury charge error under the Almanza v. State standard. See Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh'g)). We initially must determine whether error actually exists in the charge. Id. If so, we assess whether any resulting harm requires reversal. See id.         
        A trial court must submit a jury instruction under article 38.23(a) when (1) the evidence heard by the jury raises an issue of fact, (2) the evidence on that fact is affirmatively contested, and (3) the contested factual issue is material to the lawfulness of the challenged conduct in obtaining the evidence. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). No instruction is required and no issue for the jury exists, when the question is one of law only. See Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000).
        Here, the trial court concluded as a matter of law the challenged conduct was an encounter. Encounters occur when police officers approach citizens in public to ask questions and, as consensual interactions, do not require justification. See Citizen v. State, 39 S.W.3d 367, 370 (Tex. App.-Houston [1st Dist.] 2001, no pet.). A detention, on the other hand, requires reasonable suspicion and occurs when the police officer displays official authority and implies the authority cannot be ignored, avoided, or terminated. See State v. Garcia-Cantu, 253 S.W.3d 236, 241, 242 (Tex. Crim. App. 2008). It is only when a disputed fact is essential in deciding the lawfulness of the challenged conduct that an article 38.23(a) jury instruction is required. See Madden, 242 S.W.3d at 510-11.
        Beckwith argues the 38.23(a) jury instruction was mandatory because the evidence created a fact issue as to whether the initial interaction with Haynes was merely an encounter or a detention. Beckwith claims fact issues exist because Haynes asserted the interaction was an encounter and Beckwith testified she did not think she was free to leave. The State responds that no dispute exists about the facts; instead, the parties dispute the legal effect of the facts.
        The challenged conduct here is limited to the stop of Beckwith's car and approach by Haynes. The facts themselves relating to the stop and approach are undisputed:
 
 
*Haynes followed Beckwith partially through the parking lot, until Beckwith stopped her car on her own;
 
 
 
*Beckwith left the pub thinking she was fine to drive, and changed her mind after driving less than a half-mile through the parking lot;
 
        *Beckwith decided it would be better not to risk driving;
 
 
 
*Beckwith stopped in a driving lane, rather than a parking space, and Haynes stopped behind her;
 
 
 
*although Haynes turned on his spotlight, he did so after Beckwith stopped her car on her own without any signal to pull over;
 
        *Haynes never used a siren or flashing lights and did not block Beckwith's car; and
 
 
*after she stopped, Beckwith got out of her car and approached Haynes without any direction or order to do so.
 
The only disputed fact Beckwith urges is her subjective belief she was not free to leave. Subjective belief is not the test. See Garcia-Cantu, 253 S.W.3d at 242, 243. Based on this record, no factual dispute existed and the legality of the stop and approach was a question of law. No charge error occurred and we therefore do not reach a harm analysis. See Middleton, 125 S.W.3d at 453 (we assess harm only when error is found). We resolve Beckwith's first issue against her.
Motion for New Trial
        Beckwith's second issue challenges the denial, without a hearing, of her motion for new trial. A trial court abuses its discretion in not holding a hearing on a motion for new trial where the motion and supporting affidavits or verification raise matters not determinable from the record which could entitle a party to relief. See Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003); Green v. State, 264 S.W.3d 63, 68 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). Beckwith argues on appeal that statements concerning the juror who e-mailed and subsequently met with counsel raised a matter “that may not be determined by the record, namely questions concerning the unanimity of the verdict.” She also attaches to her appellate brief correspondence between the juror and the judge, asserting the trial judge “had actual knowledge of potential issues with the verdict.” The State responds that Beckwith's unsworn, conclusory motion failed to put the trial court on notice that reasonable grounds for relief existed, and further objects to Beckwith's attempted inclusion on appeal of exhibits and a supplemental affidavit not in the record. We may not consider material outside the appellate record. Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004). Accordingly, exhibits 6-8b and the supplemental affidavit attached to Beckwith's brief are not properly before the Court.
        To put the trial court on notice that reasonable grounds for relief existed, Beckwith had to file a verified motion or a motion with supporting affidavit specifically showing the truth of the grounds alleged as the basis for a new trial. See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993); Green, 264 S.W.3d at 68. Beckwith's motion was not verified and the supporting affidavit quoted above showed only that the attorney had a good faith belief about his own name, age, criminal history, and status. Neither the motion nor the affidavit attached the juror's e-mail. Nor did Beckwith explain the juror's concerns or specify any matters relating to an e-mail, meeting, or the verdict. All that is before the Court is Beckwith's conclusory statement that a juror “shared information . . . which the court may not be aware,” unsupported by specific facts or an affidavit meeting minimal requirements. This record was insufficient to put the trial court on notice and invoke the requirement of a hearing. See, e.g., Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (no abuse of discretion where affidavit did not specifically state why counsel's investigation was deficient, what further investigation would have revealed, and what non- subpoenaed witnesses would have said to exculpate him); Jabari v. State, 273 S.W.3d 745, 758-59 (Tex. App.-Houston [1st Dist.] 2008, no pet.) (no abuse of discretion where motion alleged, among other grounds, police misconduct, but affidavit contained only general rhetoric invoking need for fair trial and law and order). Because Beckwith's motion for new trial fails to meet the minimal requirements, the trial court did not abuse its discretion in not holding a hearing on Beckwith's motion for new trial. We resolve Beckwith's second issue against her.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MARY MURPHY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080413F.U05
 
Footnote 1         See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005) (when a fact issue is raised concerning the legality of evidence, jury must be instructed to disregard any evidence it believes or reasonably doubts was unlawfully obtained).
Footnote 2          See Allen v. United States, 164 U.S. 492 (1896).