MICHAEL WAYNE ASHLEY v. The State of Texas--Appeal from County Court of Live Oak County

  NUMBER 13-01-00418-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  BEDINBURG

MICHAEL WAYNE ASHLEY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

  On appeal from the County Court of Live Oak County, Texas.

  O P I N I O N

  Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Hinojosa

A jury found appellant, Michael Wayne Ashley, guilty of the offense of driving while intoxicated,[1] and the trial court assessed his punishment at 180 days confinement and a $500 fine. However, the trial court suspended the confinement and placed appellant on community supervision for a term of two years. In a single point of error, appellant contends the trial court erred by refusing to include an instruction on probable cause in the court=s charge to the jury. We affirm.

A. Background

On January 20, 2001, Trooper Guadalupe Ramon of the Texas Department of Public Safety observed appellant driving on the access road to Interstate Highway 37 in Live Oak County. Ramon suspected that appellant was speeding and pulled up behind him to Apace@ his speed. Ramon determined that appellant was not speeding, but nevertheless activated the video camera mounted in his patrol unit. Ramon then saw appellant make an illegal left-hand turn from an intersection on the access road. As Ramon continued to follow him, appellant twice drifted across the yellow dividing line into the oncoming traffic lane. Ramon then pulled appellant over. Appellant was arrested for driving while intoxicated after he failed several field sobriety tests administered by Ramon. At the charge conference, appellant=s counsel asked the trial court to include the following instruction in the charge to the jury:

The law provides that any evidence received or discovered as a result of an unlawful stop cannot be used in the prosecution of a citizen of the United States or the State of Texas. The State of Texas has the burden of showing that probable cause existed for stopping and detaining the defendant in this matter. The State must prove by a preponderance of the evidence that the initial stop and detention of the defendant was lawful. If you find that the initial stop was not lawful, you must exclude all evidence resulting from that stop and not base any determination of guilt on that evidence.

The trial court denied appellant=s request.

B. Preservation of Error

Appellant=s requested jury instruction called the trial court=s attention to the omission of such an instruction. Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon Supp. 2002); Tex. R. App. P. 33.1; Espericueta v. State, 838 S.W.2d 880, 882 (Tex. App.BCorpus Christi 1992, no pet.). Accordingly, we conclude that error, if any, is preserved for our review.

C. Special Instruction

In his sole point of error, appellant complains that the trial court erred by failing to instruct the jury on the legality of the traffic stop, as required by article 38.23 of the code of criminal procedure. Appellant contends that a fact issue was raised because the State=s videotape controverted Ramon=s testimony that appellant made an illegal left-hand turn and twice drifted across the yellow dividing line. Appellant asserts the videotape does not show that he made an illegal left-hand turn or drifted across the yellow dividing line.

Article 38.23(a) of the code of criminal procedure provides:

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) (Vernon Supp. 2002) (emphasis added).

When a fact issue regarding the validity of a stop is raised, the terms of article 38.23 clearly mandate that the jury be charged on that issue. Jordan v. State, 562 S.W.2d 472, 472 (Tex. Crim. App. 1978). It is improper to so charge the jury, unless a fact issue has been raised. Hamilton v. State, 831 S.W.2d 326, 331 (Tex. Crim. App. 1992); Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982); see Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986) (trial court must instruct jury to disregard evidence obtained illegally if defendant requests instruction and raises fact issue concerning manner in which evidence was obtained). In order to raise a fact issue, the facts relied upon to establish probable cause must be in controversy. Rose v. State, 470 S.W.2d 198, 200 (Tex. Crim. App. 1971); Webster v. State, 23 S.W.2d 1118 (Tex. Crim. App. 1930). The facts are in controversy if the issue of their validity is raised by the evidence. Jordan, 562 S.W.2d at 472.

D. The Traffic Stop

An officer may lawfully stop and detain a person for a traffic violation. McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993); See Walter v. State, 28 S.W.3d 538, 543 (Tex. Crim. App. 2000) (observation of actual violation of law is sufficient probable cause for traffic stop); Howard v. State, 888 S.W.2d 166, 172 (Tex. App.BWaco 1994, pet. ref=d) (stop of vehicle is lawful provided police had reasonable suspicion of traffic violation either on automobile or by occupant). In the instant case, two separate and independent reasons for the traffic stop were presented, either of which would constitute sufficient probable cause for the stop.

1. Illegal Left-Hand Turn

Ramon testified that appellant made an illegal left-hand turn, violating Texas Transportation Code section 545.101, and that he relied on this fact to establish probable cause for the stop. See Tex. Transp. Code Ann. ' 545.101 (Vernon Supp. 2002). We have reviewed the entire record and have found that Ramon=s testimony regarding appellant=s illegal left-hand turn is uncontroverted. The videotape does not controvert Ramon=s testimony because it does not effectively show the turn. The video camera was mounted within the patrol car in a fixed position, pointing straight-forward. As Ramon pulled up behind appellant at the stop sign, appellant made a left-hand turn outside of the camera frame. Thus, the video is inconclusive in regard to the illegal turn and does not controvert Ramon=s testimony.

Because Ramon=s testimony is uncontroverted, we conclude appellant did not raise a fact issue regarding probable cause. Accordingly, because there was no fact question regarding probable cause for the jury to resolve, we hold the trial court did not err by refusing to submit an article 38.23 instruction to the jury. See Rose, 470 S.W.2d at 200.

2. Crossing Yellow Dividing Line

Because we have found there is one legally sufficient uncontroverted ground for the stop, we need not address whether the evidence controverts Ramon=s testimony that appellant twice crossed the yellow dividing line. Tex. R. App. P. 47.1. Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

27th day of June, 2002.

[1]SeeTex. Pen. Code Ann. ' 49.04 (Vernon Supp. 2002).