James Vincent Yoda v. the State of Texas

Opinion filed May 6, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00191-CR
__________
JAMES VINCENT YODA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR49779
OPINION
The jury convicted Appellant, James Vincent Yoda, of the offense of felony
driving while intoxicated as enhanced by two prior misdemeanor DWI convictions:
one from 2000 and the other from 2016. See TEX. PENAL CODE ANN. §§ 49.04,
49.09(b)(2) (West Supp. 2020). The State alleged two prior felony convictions for
enhancement purposes. Appellant pleaded “true” to the prior felony convictions,
and the trial court found both to be “true.” The trial court assessed Appellant’s
punishment at confinement in the Institutional Division of the Texas Department of
Criminal Justice for a term of thirty-five years.
Appellant brings two issues on appeal. First, Appellant asserts that the trial
court erred in denying his motion to suppress due to the challenged validity of the
initial stop for speeding. Second, Appellant argues that the trial court abused its
discretion in denying his request for a jury instruction, pursuant to Article 38.23 of
the Texas Code of Criminal Procedure, to disregard evidence presented if the jury
had a reasonable doubt as to whether the evidence was obtained illegally or in
violation of Appellant’s constitutional rights. We affirm.
Background Facts
Around 2:15 a.m. on March 25, 2017, Deputy Blake Gibson of the Midland
County Sheriff’s Office saw Appellant cross in front of him on Front Street at a high
rate of speed. Deputy Gibson stated that he was stationary, approximately ten feet
from the intersection, when Appellant crossed in front of him. Deputy Gibson
testified that “it took me a while to catch up” and that he had to accelerate to
approximately 73 miles per hour to catch up to Appellant. The speed limit on Front
Street in that area was 45 miles per hour. Deputy Gibson believed that Appellant
was traveling approximately 60 to 70 miles per hour or at “highway speeds.” Deputy
Gibson testified that he was able to catch up to Appellant once Appellant slowed
down, possibly due to seeing the patrol car approaching from behind. Appellant
slowed to approximately 30 miles per hour until he was signaled to stop by Deputy
Gibson.
Deputy Gibson testified that, from his own personal driving experiences, he
estimated that Appellant was speeding. Deputy Gibson stated that he lacked the
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appropriate certification to activate and use radar to determine a vehicle’s speed.
Deputy Gibson testified that he had no scientific method for gauging Appellant’s
speed, and he admitted that he was not authorized to issue speeding tickets because
a speeding ticket calls for an exact speed determination. Deputy Gibson also
admitted that he had not received any specialized training on how to tell if a vehicle
was speeding from a side vantage perspective. However, Deputy Gibson based his
assessment on his own “experience driving [and knowing] that [Appellant was
traveling] well over the posted speed limit” of 45 miles per hour, as well as knowing
what a car traveling at 60 or 70 miles per hour would look like.
After pulling Appellant over, Deputy Gibson approached Appellant’s vehicle,
smelled alcohol, and saw a bottle of malt liquor inside. Appellant showed signs of
impairment, including slurred speech, and admitted drinking alcohol at a local bar.
Deputy Gibson testified that Appellant had glassy, bloodshot eyes and slurred speech
and that he struggled to remove his license from his wallet. Deputy Ethan
McKinney, who was going through training with the Midland County Sheriff’s
Office, was called to the scene to conduct the remainder of the traffic stop.
Deputy McKinney conducted the DWI portion of the investigation. Appellant
admitted to Deputy McKinney that he had been drinking and said that he just wanted
to go home. Appellant, when prompted by Deputy McKinney, struggled to touch
the tip of a pen. Deputy McKinney testified that Appellant showed signs of
intoxication while performing the horizontal gaze nystagmus test. Appellant also
showed signs of intoxication during the “walk-and-turn” test and the one-leg stand
test. After receiving the proper statutory warnings, Appellant refused to give a
breath sample. A warrant was obtained to draw Appellant’s blood.
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Nick Pierce, a forensic toxicologist with the Texas Department of Public
Safety Crime Laboratory, testified that Appellant’s blood-alcohol level came back
at 0.204, two and one-half times the legal limit. According to Pierce, this amount of
alcohol would affect a person’s mental faculties regardless of that person’s
experience with alcohol.
After the State rested, Appellant requested a jury instruction pursuant to
Article 38.23. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2018). The trial
court denied Appellant’s request, and the jury returned a verdict of guilty.
Issue One
In his first issue, Appellant argues that the trial court erred when it denied his
motion to suppress because Deputy Gibson lacked reasonable suspicion to conduct
a traffic stop on Appellant’s vehicle. Specifically, Appellant asserts that, “[a]s
Appellant was detained solely based upon an officer’s lay opinion conclusory
statement [that] Appellant was exceeding the speed limit, Appellant’s detention was
unlawful.” Thus, Appellant asserts that Deputy Gibson should not have conducted
an investigative detention for any criminal act which he claims to have observed but
about which he could do nothing. Therefore, it is Appellant’s argument that any
evidence against him, obtained as a result of the traffic stop, was unlawfully
obtained. We disagree.
A. Standard of Review
In reviewing a trial court’s ruling on a motion to suppress, we apply a
bifurcated standard of review. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim.
App. 2016); Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013);
Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011). We afford
almost total deference to the trial court’s determination of historical facts, especially
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when a trial court’s fact findings are based on an evaluation of credibility and
demeanor. Brodnex, 485 S.W.3d at 436; Crain v. State, 315 S.W.3d 43, 48 (Tex.
Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
The same deference is afforded the trial court with respect to its rulings that concern
the application of the law to questions of fact and to mixed questions of law and fact
if the resolution of those questions turns on the weight or credibility of the evidence.
Brodnex, 485 S.W.3d at 436; see Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim.
App. 2018). We review de novo whether the presented facts are sufficient to give
rise to reasonable suspicion in a case. Lerma, 543 S.W.3d at 190.
When the record is silent as to the reasons for the trial court’s ruling on a
motion to suppress, as in the case before us, we review the evidence adduced at the
suppression hearing in the light most favorable to the trial court’s ruling, infer the
necessary fact findings that support the trial court’s ruling if the evidence supports
those findings, and assume that the trial court made implicit findings to support its
ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see
Weide v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); Carmouche v. State, 10
S.W.3d 323, 327–28 (Tex. Crim. App. 2000).
At a hearing on a motion to suppress, the trial court is the exclusive trier of
fact and judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278,
281 (Tex. Crim. App. 2002). As such, the trial court may choose to believe or
disbelieve all or any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000); Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim.
App. 1990). We will sustain the trial court’s ruling on a motion to suppress if it is
supported by the record and if it is correct under any applicable theory of law.
Lerma, 543 S.W.3d at 190; Ross, 32 S.W.3d at 855–56.
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When, as here, the defense participates in the examination of witnesses at trial
on issues pertinent to a pretrial motion to suppress or does not participate but also
does not object to the subject matter of the testimony, the defendant has consensually
relitigated the suppression issue. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim.
App. 1996); Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex. Crim. App. 1984);
Davis v. State, 74 S.W.3d 90, 94 (Tex. App.—Waco 2002, no pet.). Therefore, the
trial court’s pretrial ruling is assessed in light of the evidence at both the pretrial
hearing and trial. Rachal, 917 S.W.2d at 809.
B. Analysis
There are three different types of interactions between citizens and law
enforcement officers: (1) consensual encounters; (2) investigatory detentions; and
(3) arrests. State v. Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011)
(citing Florida v. Bostick, 501 U.S. 429, 434 (1991); Terry v. Ohio, 392 U.S. 1, 30–
31 (1968); Gerstein v. Pugh, 420 U.S. 103, 111–12 (1975)). Consensual encounters
do not implicate Fourth Amendment protections. Id. at 411. Police officers may
stop and request information from a citizen with no justification. Id. A citizen may
terminate such a consensual encounter at will. Id. A citizen’s acquiescence to an
officer’s request does not transform a consensual encounter into a detention or
seizure, even if the officer does not communicate to the citizen that the officer’s
request for information may be ignored. Id. If a police officer through force or a
showing of authority restrains a citizen’s liberty, the encounter is not consensual and
has become either a detention or an arrest, requiring either reasonable suspicion or
probable cause, respectively. Id.
“Under the Fourth Amendment, a warrantless detention of a person that
amounts to less than a full-blown custodial arrest must be justified by a reasonable
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suspicion.” Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011);
see also United States v. Sokolow, 490 U.S. 1, 7 (1989) (“[P]olice can stop and
briefly detain a person for investigative purposes if the officer has a reasonable
suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even
if the officer lacks probable cause.”); Brown v. Texas, 443 U.S. 47, 51 (1979). “The
Fourth Amendment prohibits unreasonable searches and seizures by the
Government, and its protections extend to brief investigatory stops of persons or
vehicles that fall short of traditional arrest.” Ramirez-Tamayo v. State, 537 S.W.3d
29, 36 (Tex. Crim. App. 2017) (citing United States v. Arvizu, 534 U.S. 266, 273
(2002)). In such cases, “the Fourth Amendment is satisfied if the officer’s action is
supported by reasonable suspicion to believe that criminal activity ‘may be afoot.’”
Id. (quoting Arvizu, 534 U.S. at 273); see Terry v. Ohio, 392 U.S. 1, 30 (1968). A
seizure justified only by a traffic violation becomes unlawful if prolonged beyond
the time reasonably required to conduct the traffic stop. Rodriguez v. United States,
575 U.S. 348, 350–51 (2015); Ramirez-Tamayo, 537 S.W.3d at 36. Thus, continuing
a brief investigatory detention beyond the time necessary to conduct a traffic stop
requires reasonable suspicion of criminal activity apart from the traffic violation.
Ramirez-Tamayo, 537 S.W.3d at 36; see Rodriguez, 575 U.S. at 357–58.
Reasonable suspicion for a detention exists when a police officer “has
specific, articulable facts that, when combined with rational inferences from those
facts, would lead him to reasonably conclude that the person detained is, has been,
or soon will be engaged in criminal activity.” Wade v. State, 422 S.W.3d 661, 668
(Tex. Crim. App. 2013). This is an objective standard that disregards the officer’s
actual subjective intent and looks instead to whether there was an objectively
justifiable basis for the detention. Id. “When assessing the existence of reasonable
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suspicion, a reviewing court must look to the totality of the circumstances to see
whether the detaining officer had a particularized and objective basis for suspecting
legal wrongdoing.” Ramirez-Tamayo, 537 S.W.3d at 36. Although the
circumstances may seem innocent in isolation, an investigatory detention is justified
if the circumstances combine to reasonably suggest imminent criminal conduct. Id.The lesser standard of reasonable suspicion is satisfied if “the information is
sufficiently detailed and reliable—i.e., it supports more than an inarticulate hunch
or intuition—to suggest that something of an apparently criminal nature is brewing.”
Id. (quoting Wade, 422 S.W.3d at 668). A reasonable suspicion determination “need
not rule out the possibility of innocent conduct.” Id. (quoting Leming v. State, 493
S.W.3d 552, 565 (Tex. Crim. App. 2016)).
To be clear, as relevant to our review, the question is whether the evidence
the officer described allowed the trial court to reasonably resolve whether Deputy
Gibson, based on facts and circumstances observed and described with some
specificity, was able to form a reasonable suspicion to believe that Appellant was
speeding. In his brief, Appellant suggests that an experienced police officer cannot
form a reasonable opinion about the speed at which another vehicle is being driven
based on visual observations alone. According to Appellant, the facts that Deputy
Gibson described are insufficient to support the conclusion that Appellant was
speeding. We disagree.
Experienced drivers may form and express a lay opinion about the speed of
other vehicles they observe on a roadway based on the objective facts they describe,
and depending on the facts the witness articulates, the facts described may be
sufficient for a court to allow a lay witness to express a lay opinion about another
vehicle’s speed. See TEX. R. EVID. 701; McMillan v. State, 754 S.W.2d 422, 425
8
(Tex. App.—Eastland 1988, pet. ref’d) (stating that “[t]he opinions of lay witnesses,
when competent, are admissible concerning estimates of age, size, quality, time, and
estimates of distance and speed”).
Appellant criticizes the trial court’s decision to credit Deputy Gibson’s
opinion for numerous reasons. First, he suggests that Deputy Gibson did not
measure Appellant’s speed, either by radar or through “pacing.” Second, Appellant
argues that Deputy Gibson did not see Appellant pass any other vehicles who were
traveling at the posted speed limit. Third, Appellant criticizes Deputy Gibson’s lack
of specialized training in estimating vehicle speeds by sight. Lastly, Appellant
argues that Deputy Gibson had no scientific method for gauging Appellant’s speed.
In our opinion, Appellant’s arguments go to the weight the trial court chose to
afford Deputy Gibson’s testimony and to whether the trial court had the discretion
to accept Deputy Gibson’s testimony as sufficiently reliable to demonstrate that the
officer formed a reasonable suspicion to believe that Appellant was driving his
vehicle above the posted speed limit. While it is true that Deputy Gibson couched
his opinion in miles per hour and described Appellant as traveling at “highway
speeds” estimated at 60 to 70 miles per hour, the evidence allowed the trial court to
view the opinion as an estimate and not a precise mathematical calculation of
Appellant’s speed. See Phipps v. State, No. 09-18-00473-CR, 2021 WL 262074, at
*3 (Tex. App.—Beaumont Jan. 27, 2021, no pet.) (mem. op., not designated for
publication). The other facts show that Deputy Gibson did not use a radar to gauge
Appellant’s speed and that Deputy Gibson did not apply any scientific formulas
designed to determine another vehicle’s speed. See id. The estimate that Deputy
Gibson provided is one that he based on facts he described, all of which he personally
observed as Appellant crossed in front of him on Front Street.
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While the trial court, in exercising its discretion, might have chosen to not
believe or credit Deputy Gibson’s testimony, we must give the trial court’s ruling
almost complete deference given that the trial court had the right to decide whether
Deputy Gibson was a credible witness. See Garcia-Cantu, 253 S.W.3d at 241. As
the factfinder, the trial court had the right to resolve the discrepancies that Appellant
pointed out and to decide whether the testimony should be given any weight. Where
a posted speed limit on a city street is alleged to have been exceeded by only five
miles per hour, as judged by only the naked eye of even the most trained traffic
officer, the allegation might be suspect; however, a vehicle exceeding a 45-mile-per-
hour speed limit in downtown Midland by twenty miles per hour or more, as is the
case here, cannot be said to be outside the plausible range of experience or ability of
the average driver to appreciate, even if the exact speed cannot be precisely
ascertained. Both would be subject to cross-examination, and a factfinder would be
entitled to weigh the credibility of that witness and testimony. Under the
circumstances, we must reject Appellant’s suggestion that Deputy Gibson had to
determine Appellant’s exact speed by using a radar or a scientific method rather than
offering a lay opinion about his speed to form a reasonable suspicion to believe that
Appellant was driving over the posted speed limit. See Phipps, 2021 WL 262074,
at *3; Icke v. State, 36 S.W.3d 913, 915–16 (Tex. App.—Houston [1st Dist.] 2001,
pet. ref’d) (upholding trial court’s ruling, which was supported by the arresting
officer’s testimony that his opinion about the defendant’s speed was one formed
based on the officer’s experience and without using radar).
In his brief, Appellant relies on Ford v. State, 158 S.W.3d 488 (Tex. Crim.
App. 2005), to bolster his argument that the record does not support the trial court’s
ruling on his motion to suppress. This case, however, is easily distinguishable. In
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Ford, the Court of Criminal Appeals explained that, when a police officer expresses
an opinion about whether another vehicle is following too closely, the record must
contain more than the officer’s bare opinion to support a ruling denying a motion to
suppress. 158 S.W.3d at 494 (“The State failed to elicit any testimony pertinent to
what facts would allow [the officer] to objectively determine Ford was violating a
traffic law.”). But unlike the record in this case, the officer’s testimony in Ford
failed to reveal the facts that the officer relied on when he formed the opinion that
he expressed in the trial. See id. Identifying facts the officer used to form the opinion
is necessary to the appellate record, as appellate courts require the record to show
that the police officer articulated facts on which they relied to form the opinions that
led them to reasonably believe that “a particular person actually is, has been, or soon
will be engaged in criminal activity.” Id. at 492. Deputy Gibson identified those
facts in the hearing on Appellant’s motion to suppress and during trial. The trial
court, as the trier of fact, resolved doubts and conflicts, if any, that might have arisen
in the suppression hearing.
Deputy Gibson testified that he saw Appellant driving at a speed that was
neither reasonable nor prudent, stating: “I witnessed a small passenger car traveling
west to east on Front, traveling at what appeared to be a high rate of speed.” Deputy
Gibson further supplied the trial court with testimony concerning the context from
which he derived that opinion: “[I]t took me a while to catch up” and “I believe my
top speed was 73 miles [per] hour in order to catch up.” Deputy Gibson testified
that he was only able to catch up to Appellant when Appellant applied his brakes.
Deputy Gibson admitted that he was not certified to use the radar to determine
Appellant’s speed and that he could not “pace” Appellant’s vehicle due to Deputy
Gibson’s initial position. He based his assessment on his own “experience driving
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[and knowing] that [Appellant was traveling] well over the posted speed limit” of
45 miles per hour and knowing what it is to observe 60 or 70 miles per hour. Deputy
Gibson testified that he was “very familiar with the way a vehicle appears when
traveling highway speed . . . . And so [Deputy Gibson] felt that the vehicle was
possibly traveling at a highway speed, which is well above the posted speed limit.”
Appellant asserts that Deputy Gibson did not see a traffic violation occur, only
made a conclusory opinion that Appellant was speeding, and did not have any
objective way to determine that Appellant was violating the law. We disagree.
Regardless of the numerical limit posted on a speed limit sign, it is a traffic offense
for a vehicle operator to “drive at a speed greater than is reasonable and prudent
under the circumstances then existing.” TEX. TRANSP. CODE ANN. § 545.351(a)
(West 2011). Poor weather, darkness, or other traffic conditions can legally require
that drivers lower their speed below that which is posted to prudently address those
less-than-optimal driving circumstances. See id. § 545.363. A posted speed limit is
prima facie evidence that a speed greater than that posted is not reasonable and
prudent and that the speed is unlawful. Id. § 545.352(a) (West Supp. 2020). As
stated above and as seen in Icke, an officer’s observation of a vehicle’s speed, with
or without the use of radar, can satisfy the basis for a reasonable suspicion to conduct
a traffic stop. Icke, 36 S.W.3d at 916. While the evidence presented by Deputy
Gibson may not have established beyond a reasonable doubt that Appellant was
speeding, an officer does not need to meet that burden of proof to have reasonable
suspicion to conduct a traffic stop. Al-Hanna v. State, No. 08-17-00037-CR, 2019
WL 156779, at *4 (Tex. App.—El Paso Jan. 10, 2019, no pet.) (not designated for
publication) (citing Ford, 158 S.W.3d at 492 (an officer only needs a reasonable
basis to conduct a traffic stop and is not required to prove the commission of a traffic
12
offense beyond a reasonable doubt)). Instead, these are specific and articulable facts
that show that an objective officer could have reasonable suspicion that, under the
totality of the circumstances, Appellant was speeding in the officer’s presence.
Deferring to the trial court’s resolution of historical facts, we conclude that
the record supports a finding of reasonable suspicion. Thus, the trial court did not
err in denying Appellant’s motion to suppress. We, therefore, overrule Appellant’s
first issue on appeal.
Issue Two
In his second issue, Appellant argues that the trial court erred by denying his
request to instruct the jury that it must disregard evidence if it had a reasonable doubt
about whether Deputy Gibson stopped Appellant based on a reasonable suspicion of
Appellant exceeding the speed limit. See CRIM. PROC. art. 38.23; Comm. on Pattern
Jury Charges, State Bar of Texas, Texas Criminal Pattern Jury Charges: General,
Evidentiary & Ancillary Instructions PJC 8.6 (2018) (Instruction—Exclusionary
Rules—Evidence Obtained as Result of Traffic Stop for Speeding); see also
Madden v. State, 242 S.W.3d 504, 508 n.5 (Tex. Crim. App. 2007).
A. Standard of Review
A review of alleged jury-charge error involves a two-step analysis. Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d
726, 731–32 (Tex. Crim. App. 1994). We must first determine whether the charge
contained any actual error. Ngo, 175 S.W.3d at 743–44; Abdnor, 871 S.W.2d at731–32. If there was actual error, we must next determine whether the error resulted
in sufficient harm to require reversal. Ngo, 175 S.W.3d at 743–44; Abdnor, 871
S.W.2d at 731–32.
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B. Analysis
Under Texas law, the Code of Criminal Procedure requires trial courts to
exclude evidence in a trial if the State obtained the evidence by violating the law.
CRIM. PROC. art. 38.23. But if the evidence shows that a fact issue exists about
whether the police conduct was illegal, the trial court must submit an instruction to
the jury that informs the jury that “if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this Article, . . . [it must]
disregard any such evidence so obtained.” Id. art. 38.23(a).
There must be a genuine dispute about a material fact issue before an
Article 38.23 instruction is warranted. Madden, 242 S.W.3d at 509–10. The
defendant must demonstrate that (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. Id. at 510. If there is no disputed issue of material fact, the legality of the
challenged conduct is a question of law for the trial court. Id. And if other
undisputed facts are sufficient to establish the lawfulness of the conduct, the
contested factual issue is not material, and the defendant is not entitled to a jury
instruction on the fact issue. See id. at 510–11.
To raise a disputed fact issue, there must be some affirmative evidence that
contradicts the existence of that fact. Id. at 513. This evidence can come “from any
source,” regardless of whether it is “strong, weak, contradicted, unimpeached, or
unbelievable.” Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting
Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1996, pet.
ref’d)). A defendant’s questions on cross-examination cannot, by themselves, raise
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a disputed fact issue. Madden, 242 S.W.3d at 515. However, the witnesses’ answers
to those questions might raise a fact issue. Id. at 513.
Appellant asserts that Deputy Gibson’s responses to cross-examination at trial
gave rise to a genuine issue of fact. Appellant points to Deputy Gibson’s testimony
that, upon catching up to Appellant’s vehicle, Appellant was only traveling at 33
miles per hour, well below the posted speed limit. Appellant also notes that Deputy
Gibson never paced Appellant’s vehicle or used radar to determine Appellant’s
speed. Deputy Gibson admitted that he had no objective way to determine whether
Appellant was actually traveling over the speed limit but, rather, relied upon his past
experiences as a police officer. Appellant also argues that Deputy Gibson’s view
was impeded by telephone poles and an electrical box at the intersection where
Deputy Gibson claimed to have witnessed Appellant speeding. Based on this
testimony, Appellant contends that a fact issue arose that was affirmatively
contested, which should have been resolved by an Article 38.23 instruction. We
disagree.
We examine the hypothetical presented in Madden, 242 S.W.3d at 511, to
analyze Appellant’s suggested fact issue. Appellant’s asserted issue is whether a
fact question was presented requiring an instruction per Article 38.23 based on
Deputy Gibson’s testimony that he could determine, by visual observation only, that
Appellant exceeded the speed limit of 45 miles per hour, thereby giving the officer
a reasonable suspicion to stop Appellant. The Court of Criminal Appeals addressed
this argument in Madden and reasoned:
If the jury finds that appellant did obey the speed limit and that Officer
Lily was unreasonable in believing that he did not, then they may not
consider the evidence obtained as a result of this unlawful detention.
If, however, Officer Lily says that appellant did speed, and Witness
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Two (or appellant) says that he doesn’t remember or doesn’t know,
there is no disputed fact to submit because there is no affirmative
evidence of a factual conflict. Similarly, if Officer Lily testifies that
appellant did speed, but the cross-examiner grills him, “Isn’t it true that
he really did obey the speed limit, you’re wrong or you’re lying?” there
is no factual dispute unless Officer Lily admits, “Yes, that is true.” The
cross-examiner cannot create a factual dispute for purposes of an
Article 38.23(a) instruction merely by his questions. It is only the
answers that are evidence and may create a dispute. Even the most
vigorous cross-examination implying that Officer Lily is the Cretan
Liar does not raise a disputed issue. There must be some affirmative
evidence of “did not speed” in the record before there is a disputed fact
issue.
Madden, 242 S.W.3d at 513–14 (footnotes omitted).
Applying Madden directly to the case before this court, if Deputy Gibson had
testified that Appellant did speed, and another witness, or Appellant, had testified
that Appellant did not speed, this disputed factual issue would have been required to
be submitted to the jury. See id. at 513. With a factual dispute, if the jury were to
believe that Appellant was obeying the speed limit and/or that Deputy Gibson was
untruthful or unreasonable in believing that Appellant was not, then the jury, under
Article 38.23, would be required to disregard the evidence obtained as a result of the
unlawful detention that followed. See id. If, however, Deputy Gibson had testified
that Appellant did speed, and another witness, or Appellant, had testified that he did
not remember, did not know, or failed to testify at all, then there would have been
no disputed fact to submit because there was no affirmative evidence of a factual
conflict. See id. Similarly, if Deputy Gibson had testified that Appellant did speed,
but opposing counsel had grilled him, “Is it not true that Appellant really did obey
the speed limit, you are wrong or you are lying?” there would be no factual dispute
16
unless Deputy Gibson, to cross-examination, made an admission. See id. at 513–14;
see Garza v. State, 126 S.W.3d 79, 86 & n.3 (Tex. Crim. App. 2004).
Here, as stated in Madden, “[t]here must be some affirmative evidence of ‘did
not speed’ in the record before there is a disputed fact issue.” Madden, 242 S.W.3d
at 514; see Jordan v. State, 562 S.W.2d 472, 473–74 (Tex. Crim. App. 1978) (when
officer testified that a specific person had told him that defendant always carried a
gun and that that is why he patted down defendant in bar, but that person testified
and denied telling the officer that the defendant always carried a gun, defendant was
entitled to jury instruction under Article 38.23(a)). In light of Madden, if there is a
real contest as to a historical fact underlying the officer’s reasonable suspicion, such
as evidence at trial contrary to the State’s position and the police officer’s testimony,
the defendant is entitled to a properly requested Article 38.23 instruction on the
disputed fact issue. Otherwise, where there is no factual dispute, an Article 38.23
instruction is not appropriate. To create a factual dispute and lay the groundwork
for an instruction under Article 38.23, the defense may consider, among other trial
tactics, impeaching using contradictory documents or video, waiving the Fifth
Amendment and placing the defendant on the stand to contradict the testimony of
the officer, presenting third-party witnesses and/or eliciting cross-examination
admissions from an officer on site at the time of the stop. Because there was no such
evidence in this record, the trial court did not abuse its discretion in denying
Appellant’s request for a jury instruction on this alleged disputed fact.
Appellant asserts that Deputy Gibson’s line of sight was impeded at the
intersection and that, therefore, Deputy Gibson could not properly determine
whether Appellant was speeding. While cross-examination could certainly be used
to attempt to discredit the officer’s testimony, consistent with Madden, we cannot
17
hold that, without an officer admission, this sufficiently created an issue of disputed
fact. We distinguish this case from Mills v. State, 296 S.W.3d 843, 847 (Tex. App.—
Austin 2009, pet. ref’d) (officer’s responses on cross-examination and his patrol car
video raised a fact question about the officer’s ability to have seen the alleged traffic
offense). In Mills, a chain-link fence and two buildings—in addition to the officer
being further away from the alleged traffic violation compared to our case—
ultimately resulted in a disputed fact issue of whether the officer could see if Mills
had activated his turn signal within one hundred feet of the intersection. Mills, 296
S.W.3d at 847. In Mills, the record contained affirmative evidence, including video
from the officer’s patrol car and admissions made by the officer during cross-
examination, that created a factual dispute. Id. at 847–48. Here, the record contains
no evidence indicating that Deputy Gibson was not able to see Appellant pass
through the intersection with unimpeded line of sight.
Appellant also argues that a fact issue is in dispute because Appellant was
only traveling approximately 33 miles per hour when Deputy Gibson caught up to
him. However, we do not believe this creates a contested factual issue because,
although Appellant had slowed down by the time Deputy Gibson approached from
behind, Appellant would have already committed the offense of speeding, evidenced
by Deputy Gibson’s perception and the fact that Deputy Gibson had to travel at a
speed of approximately 73 miles per hour to catch up to Appellant’s vehicle.
Additionally, Appellant contends that a disputed fact issue was created because
Deputy Gibson did not utilize pacing or radar to determine Appellant’s speed.
However, as detailed above, Appellant’s exact speed did not need to be determined.
See TRANSP. § 545.351(a).
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Contrary to the first sentence of Appellant’s Proposed Additions to the Jury
Charge, if it is the presence of reasonable suspicion to justify the traffic stop that was
at issue, an Article 38.23 instruction would not be warranted. The legal
determination of whether an officer’s observation qualifies as reasonable suspicion
is a matter of law for the trial court; it is not a fact issue for the jury to resolve
following an instruction from the trial court under Article 38.23. Madden, 242
S.W.3d at 511 (noting that trial judge decides what “quality and quantum” of facts
are necessary to establish legal terms of art like “reasonable suspicion” or “probable
cause”). “Only the judge is authorized to determine the legal significance of the
material facts in the case and how they affect the ultimate conclusion regarding the
existence, vel non, of probable cause or reasonable suspicion.” Robinson v. State,
377 S.W.3d 712, 722 (Tex. Crim. App. 2012).
As suggested by the Texas Court of Criminal Appeals in Hamal v. State, a
factual dispute requires an Article 38.23 instruction if it is about what an officer “did,
said, saw, or heard.” 390 S.W.3d 302, 307 (Tex. Crim. App. 2012). In this case,
there is no factual dispute about what Deputy Gibson did, said, saw, or heard. The
only dispute is as to his opinion that what he saw constituted obvious speeding—
thereby providing a reasonable suspicion. Specifically, Deputy Gibson testified that
he witnessed Appellant traveling at what he concluded were “highway speeds,”
approximately 60 to 70 miles per hour, in a zone where the posted speed limit was
45 miles per hour. Deputy Gibson admitted that he was not trained to utilize radar
and did not pace Appellant’s vehicle to determine the exact speed Appellant was
traveling. However, Deputy Gibson never contradicted his assertion that Appellant
was speeding, and Appellant did not create a factual dispute by providing any
affirmative evidence to the contrary. Deputy Gibson’s answers to questions on
19
cross-examination did not create a dispute of a factual issue that thereby required an
Article 38.23 instruction.
Because there was no disputed factual issue presented, we hold that the trial
court did not err by failing to include Appellant’s requested jury instruction under
Article 38.23. Therefore, we overrule Appellant’s second issue.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
May 6, 2021
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
20