Irby Giles Allison v. the State of Texas

Opinion issued August 26, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00909-CR
———————————
IRBY GILES ALLISON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 155th District Court
Austin County, Texas
Trial Court Case No. 2019R-0088
MEMORANDUM OPINION
Following a traffic stop, appellant Irby Giles Allison was charged with driving
while intoxicated. A jury found Allison guilty of the offense, enhanced by a prior
conviction for intoxication manslaughter, and sentenced him to 12 years’
confinement. See TEX. PENAL CODE §§ 49.04, 49.09. In three issues on appeal,
Allison contends: (1) the trial court abused its discretion by denying his motion to
suppress evidence obtained as a result of the illegal traffic stop; (2) he was
egregiously harmed by the trial court’s failure to sua sponte give a jury charge
instruction under Article 38.23(a) of the Code of Criminal Procedure; and (3) he
received ineffective assistance based on his trial counsel’s failure to request an
Article 38.23(a) instruction.
We affirm.
Background
While on routine patrol around 1:15 a.m. on October 8, 2017, Texas
Department of Public Safety Trooper L. Gabler saw a vehicle driven by Allison fail
to maintain its lane by drifting across the roadway’s center stripe and fog line. Gabler
signaled for Allison to pull over and, after noticing a “strong” odor of alcohol coming
from the vehicle, ordered Allison to step out of the vehicle. Allison had bloodshot
eyes, slurred speech, and an odor of alcohol. He told Gabler he had consumed three
alcoholic beverages in a four-hour period. Gabler conducted a series of field sobriety
tests, determined Allison was intoxicated, and arrested Allison. Gabler also obtained
a warrant for a blood sample after Allison refused consent. Testing of the sample
indicated that Allison’s blood alcohol concentration at the time of the traffic stop
was between 0.19 and 0.25. Allison was indicted for the felony offense of driving
while intoxicated with a previous conviction for intoxication manslaughter.
2
Pretrial suppression hearing
Before trial, Allison moved to suppress all evidence obtained in connection
with the traffic stop. Gabler testified at the suppression hearing that he stopped
Allison because Allison committed a traffic violation by crossing the center stripe
twice. As described by Gabler, Allison’s vehicle drifted “over and across the white
[fog] line, and then regain[ed] control and cross[ed] the center striped yellow line,
and regain[ed] control,” before repeating the sequence again.
The dashcam video from Gabler’s patrol vehicle was played for the trial court.
Allison argued that Gabler did not have reasonable suspicion to initiate the traffic
stop because the dashcam video showed that Allison’s vehicle did not cross the
center stripe. In response to several questions on cross-examination, Gabler
identified instances in the video where Allison crossed the center line: “There.
Slightly after”; “There. Slightly back”; “Slightly reversed, if you can get it. It was
like the second before that where he crossed it.”1 Gabler explained that the moment
Allison’s tire crossed the center stripe was a “brief action,” “not like [Allison] is
staying across the center line or the fog line for a couple of seconds,” and that it was
difficult to see “off this low[-]quality video” and “at this distance.”
1
The record suggests there was some difficulty in stopping, starting, and replaying
the dashcam video at the suppression hearing. According to the State, “the video
had a technical problem that prevented the scrub bar from moving accurately and
each time it was moved, it displayed an inaccurate time stamp.” The problem was
resolved before the dashcam video was played for the jury at trial.
3
After hearing Gabler’s testimony and viewing the dashcam video, the trial
court denied Allison’s motion to suppress. The trial court stated:
All right. The video obviously isn’t the greatest quality but it does show
some amount of swerving, at least up to, if not across the fog line and
centerline. The officer’s testimony says that he did. I believe it [is] for
the jury to observe the video, listen to the testimony from the officer,
and make a decision based on the evidence that will come in during the
course of the trial. So the motion to suppress on that issue is denied.
Trial proceedings
The case proceeded to trial, with Gabler again testifying about the
circumstances of the traffic stop and the resulting arrest. Gabler told the jury he
activated his overhead emergency lights and signaled to Allison to pull over after
seeing Allison’s vehicle “drift from the center of the road to the right, across the
white [fog] line, saw him regain control, drift to the left, cross the center yellow line,
regain control, go back to the middle[,] and repeat the sequence again.” The State
also played the dashcam video for the jury.
On cross-examination, Allison’s trial counsel asked Gabler to identify where
the dashcam video showed Allison cross the white fog line and the yellow center
stripe. Gabler responded that it was difficult to see the details of Allison’s vehicle
on the video, stating at times during cross-examination that it was “hard for [him] to
tell at this distance” or that he could not “distinguish it with this video.” He
explained:
4
So same concept as looking down a hallway. As it goes, as the distance
increases, the walls are gonna come in. So your lanes, there too, are also
going to appear more narrow at a distance. Unfortunately, a video
camera does not give the same replication as a set of eyes.
But, referencing the video, he indicated the traffic violations occurred at points
“[t]here”; “[s]lightly before now”; “[t]here and maybe about a second reverse”; and
“right before I turned on the lights.”
Following the presentation of additional evidence concerning Allison’s field
sobriety testing, blood draw, and blood alcohol concentration, the parties rested. The
trial court submitted the case to the jury. Allison’s trial counsel did not request that
the jury charge include an instruction on illegally obtained evidence under Article
38.23 of the Code of Criminal Procedure, and the trial court did not give one sua
sponte. The jury found Allison guilty of the felony offense of driving while
intoxicated with a previous conviction for manslaughter, as alleged in the
indictment.
Motion to Suppress
In his first issue, Allison contends the trial court abused its discretion by
denying his pretrial motion to suppress “all evidence of intoxication.” Allison argues
that the dashcam video indisputably showed that he did not cross the center stripe,
and therefore Gabler did not have reasonable suspicion for the traffic stop.
5
A. Standard of Review and Governing Law
“When a police officer stops a defendant without a warrant, the State has the
burden of proving the reasonableness of the stop at a suppression hearing.” State v.
Cortez, 543 S.W.3d 198, 204 (Tex. Crim. App. 2018); Castro v. State, 227 S.W.3d
737, 741 (Tex. Crim. App. 2007). A police officer’s decision to stop an automobile
passes Fourth Amendment scrutiny when the officer has reasonable suspicion to
believe that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 30 (1968);
Castro, 227 S.W.3d at 741. Reasonable suspicion exists when, based on the totality
of the circumstances, an officer has specific articulable facts which lead the officer
to conclude that the person is, has been, or soon will be engaged in criminal
activity. Furr v. State, 499 S.W.3d 872, 878 (Tex. Crim. App. 2016); Woods v. State,
956 S.W.2d 33, 38 (Tex. Crim. App. 1997). “The legality of a traffic stop based on
reasonable suspicion does not depend upon a showing that an actual offense was
committed; it is sufficient to show that the officer reasonably believed that an offense
was in progress.” State v. Torrez, 490 S.W.3d 279, 283 (Tex. App.—Fort Worth
2016, pet. ref’d).
Under this standard, an officer may lawfully stop and detain a person for a
traffic violation that the officer witnesses. See Garcia v. State, 827 S.W.2d 937, 944
(Tex. Crim. App. 1992) (adopting rule that, “[a]s long as an actual violation occurs,
law enforcement officials are free to enforce the laws and detain a person for that
6
violation” and holding that police officers’ stop and detention of defendant for stop
sign violation committed in their presence was reasonable); State v. Prieto, No. 08-
12-00268-CR, 2018 WL 447123, at *3 (Tex. App.—El Paso Jan. 17, 2018, no pet.)
(not designated for publication) (appellant’s failure to signal justified initial stop that
led to finding contraband in vehicle); see also TEX. CODE CRIM. PROC. art. 14.01(b)
(“A peace officer may arrest an offender without a warrant for any offense
committed in his presence or within his view.”); TEX. TRANSP. CODE
§ 543.001 (“Any peace officer may arrest without warrant a person found
committing a violation of this subtitle.”). Relevant here, unless certain conditions
exist,2 a driver “on a roadway of sufficient width shall drive on the right half of the
roadway.” TEX. TRANSP. CODE § 545.051(a). And as we noted above, “[i]f an officer
has a reasonable basis for suspecting that a person has committed a traffic offense,
the officer may legally initiate a traffic stop.” Zervos v. State, 15 S.W.3d 146, 151
(Tex. App.—Texarkana 2000, pet. ref’d).
A trial court’s ruling on a motion to suppress evidence is reviewed for an
abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).
2
Section 545.051(a) requires a driver to drive on the right side of the road unless:
“(1) the [driver] is passing another vehicle; (2) an obstruction necessitates moving
the vehicle left of the center of the roadway . . . ; (3) the [driver] is on a roadway
divided into three marked lanes for traffic; or (4) the [driver] is on a roadway
restricted to one-way traffic.” TEX. TRANSP. CODE § 545.051(a). None of these
conditions were present in this case.
7
In reviewing the trial court’s ruling on a motion to suppress and its determination of
the reasonableness of a traffic stop, we use a bifurcated standard of review. Amador
v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We must give “almost total
deference to a trial court’s determination of the historical facts that the record
supports especially when the trial court’s fact findings are based on an evaluation of
credibility and demeanor.” Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). “That same deferential standard of review ‘applies to a trial court’s
determination of historical facts even when that determination is based on a
videotape recording admitted into evidence at a suppression hearing.’” State v.
Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013) (quoting Montanez v. State,
195 S.W.3d 101, 109 (Tex. Crim. App. 2006)); see State v. Houghton, 384 S.W.3d
441, 446 (Tex. App.—Fort Worth 2012, no pet.) (reviewing court should give almost
total deference to trial court’s factual determinations unless video recording
indisputably contradicts those findings). “But when evidence is conclusive, such as
. . . ‘indisputable visual evidence,’ then any trial-court findings inconsistent with that
conclusive evidence may be disregarded as unsupported by the record, even when
that record is viewed in a light most favorable to the trial court’s ruling.” Miller v.
State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012) (quoting Tucker v. State, 369
S.W.3d 179, 187 (Tex. Crim. App. 2012) (Alcala, J., concurring)).
8
We afford the same level of deference to a trial court’s ruling on “application
of law to fact questions,” or “mixed questions of law and fact,” if the resolution of
those questions turns on an evaluation of credibility and demeanor. Montanez, 195
S.W.3d at 106 (citing Guzman, 955 S.W.2d at 89). We review de novo “mixed
questions of law and fact” that do not depend upon credibility and demeanor. Id.(citing Guzman, 955 S.W.2d at 89). “Whether the facts known to the officer amount
to reasonable suspicion is a mixed question of law and fact subject to de novo
review.” Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012); see Duran,
396 S.W.3d at 570 (trial court’s application of search-and-seizure law is reviewed
de novo). We will uphold the trial court’s ruling under any applicable theory of law.
See Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019).
B. Analysis
The articulable fact that Gabler identified as the basis for the traffic stop was
the traffic violation he claimed to have witnessed when Allison crossed the center
stripe. If, contrary to Gabler’s testimony, the violation did not occur, then Gabler
would have had no more than a hunch or suspicion that criminal activity was
occurring, making the traffic stop unlawful. See Terry, 392 U.S. at 30; Castro, 227
S.W.3d at 741. According to Allison, the video from Gabler’s dashcam provided
indisputable evidence that he did not cross the center stripe, and thus the trial court’s
denial of his motion to suppress should be disregarded as unsupported by the record.
9
In support of his contention, Allison cites two cases in which the Court of
Criminal Appeals disregarded trial court findings that were contradicted by video
recordings. See Miller, 393 S.W.3d at 265; Carmouche v. State, 10 S.W.3d 323, 332–
33 (Tex. Crim. App. 2000). In Carmouche, the Court held the video recording did
not support the trial court’s implied finding that the appellant gave “free and
voluntary” consent to search by throwing up his hands, responding “All right” to a
search request, and then turning around to place his hands on his car. See 10 S.W.3d
at 331–32. The Court explained:
[T]he videotape belies [the officer’s] testimony that appellant raised his
hands and turned around in response to [the officer’s] request to search.
The tape does not support a conclusion that appellant made these
gestures as an indication of consent. Indeed, appellant turned around
and assumed a position to facilitate the search after he was ordered to
do so by one of the officers. [The officer’s] “request” came after
officers had appellant spread-eagled beside his car.
Id. at 332. The Court declined to give almost total deference to the trial court’s
implicit finding on consent, holding instead that the record could not support a
finding of consent when the video presented “indisputable visual evidence
contradicting essential portions of [the officer’s] testimony.” Id. at 332–33.
In Miller, the Court disregarded some of the trial court’s findings because they
were contradicted by events recorded by police-car cameras and body microphones.
See 393 S.W.3d at 263–65. For example, the trial court found that the record was
“silent as to whether any other persons were known to have been in the other rooms
10
or areas of the apartment [where police conducted a warrantless search after a
domestic disturbance and found a controlled substance] at the time of the events
described at the hearing; thus the officers were not aware if a third party was present
on the scene at the time of their investigation. Two children were finally determined
to be asleep in a bedroom.” Id. at 265. But the recordings revealed that the officers
recognized upon entry that the appellant was the only adult present, accepted her
assurances that the only other persons present in the apartment were “her babies,”
and made no attempt to search the apartment for her boyfriend or children. Id. at
258, 265. The Court concluded that the trial court findings were “internally
inconsistent and largely contradicted by the record.” Id. at 263–64.
But this case is not like Carmouche or Miller because Gabler’s dashcam video
does not indisputably contradict his testimony. See Miller, 393 S.W.3d at 263–65;
Carmouche, 10 S.W.3d at 332. At the suppression hearing, Gabler testified that
Allison crossed the center stripe twice. When asked where the violations occurred
on the dashcam video, Gabler answered with declarations such as “there” or “slightly
back.” Although Gabler could not identify when Allison’s tires crossed the center
stripe with reference to a precise timestamp on cross-examination, he did not agree
the video showed no violation. He explained the violation was brief and easier to
observe in person, and the video was of poor quality. The trial court found the video,
though lacking in quality, showed “swerving, at least up to, if not across the fog line
11
and centerline.” Even if we disagreed with the trial court’s view of the video, and
we do not, the video does not indisputably require us to overturn the trial court’s
decision.
As other courts have observed, “[R]arely will videotape evidence actually be
‘indisputable.’” State v. Tabares, No. 08-17-00175-CR, 2019 WL 2315004, at *6
(Tex. App.—El Paso May 22, 2019, no pet.) (not designated for publication)
(quoting Tucker, 369 S.W.3d at 187 n.1 (Alcala, J., concurring)). Video evidence
may lack clarity “because of lighting, angle, focus of the camera, or distance from
the object being recorded.” Id. (citing Tucker, 369 S.W.3d at 187 n.1 (Alcala, J.,
concurring)). “We could add to that list the quality and settings of the [technology]
used to view a video” in court. Id.
In this case, the traffic violation claimed by Gabler occurred in a matter of
seconds during the dark early morning hours on a poorly lit road. The grainy quality
of the video, the distance between Allison’s and Gabler’s vehicles, and the
headlights on Allison’s vehicle, together, obscure the detail of Allison’s vehicle and
make it difficult to see the precise position of his tires in relation to the center stripe.
But, as the trial court found, the video shows Allison’s vehicle swerve and approach,
if not cross, the center stripe. We thus cannot say the video indisputably shows that
Allison maintained his lane and did not cross the center stripe, and we will not
disregard the trial court’s decision as unsupported by the record. See id. (holding,
12
even if appellate court might have reached different conclusion than trial court as to
what video of traffic stop showed, video lacked clarity and thus was not indisputable
evidence trial court’s finding was unsupported by record).
Accordingly, we overrule Allison’s first issue.
Jury Charge Instruction
In his second issue, Allison argues egregious harm resulted when the trial
court failed to sua sponte give a jury charge instruction under Article 38.23(a) of the
Code of Criminal Procedure because the evidence raised a fact issue on the
lawfulness of the traffic stop. See TEX. CODE CRIM. PROC. art. 38.23(a).
A. Standard of Review and Governing Law
The Code of Criminal Procedure requires the trial court to deliver to the jury
a written charge “distinctly setting forth the law applicable to the case.” TEX. CODE
CRIM. PROC. art. 36.14. Under Article 38.23(a), “[n]o evidence obtained by an
officer . . . in violation of any provisions of the Constitution or laws . . . shall be
admitted in evidence against the accused” at trial. TEX. CODE CRIM. PROC. art.
38.23(a); Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012). When
evidence presented before the jury raises a question of whether the fruits of a
police-initiated search or arrest were illegally obtained, “‘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
13
shall disregard any such evidence so obtained.’” Robinson, 377 S.W.3d at
719 (quoting TEX. CODE CRIM. PROC. art. 38.23(a)).
The defendant must meet three requirements before he is entitled to an Article
38.23(a) instruction: (1) the evidence heard by the jury must raise an issue of fact;
(2) the evidence on that fact must be affirmatively contested; and (3) the contested
factual issue must be 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). To raise a disputed fact warranting an Article 38.23(a) instruction, there must
be some affirmative evidence that puts the existence of that fact into question. 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)); Mills v. State, 296 S.W.3d 843, 848
(Tex. App.—Austin 2009, pet. ref’d) (observing video may constitute affirmative
evidence for purpose of conducting Article 38.23(a) instruction inquiry). While a
defendant’s questions on cross-examination cannot, by themselves, raise a disputed
fact issue, the witnesses’ answers to those questions may. Madden, 242 S.W.3d at
513, 515.
The trial court must give an Article 38.23(a) jury charge instruction in any
case in which the defense raises a factual dispute about the legality of how evidence
14
was obtained; the requirement for such an instruction does not depend on a request
from the defendant. See id. at 510; Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim.
App. 2005). When a defendant fails to request such an instruction, however, we
review the alleged error for egregious harm. Roberts v. State, 321 S.W.3d 545, 553
(Tex. App.—Houston [14th Dist.] 2010, pet ref’d) (citing Bluitt v. State, 137 S.W.3d
51, 53 (Tex. Crim. App. 2004)). “Jury-charge error is egregiously harmful if it
affects the very basis of the case, deprives the defendant of a valuable right, or vitally
affects a defensive theory.” Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App.
2007). In evaluating whether harm is egregious, we consider (1) the entire jury
charge; (2) the evidence, including the contested issues and weight of the probative
evidence; (3) the arguments of counsel; and (4) any other relevant information
revealed by the trial record as a whole. Id.B. Analysis
Allison was convicted based on the evidentiary “fruit” of Gabler’s traffic stop.
Allison argues that the trial court erred by failing to sua sponte give a jury charge
instruction under Article 38.23(a) because evidence presented at trial—his cross-
examination of Gabler and the dashcam video—raised a contested fact issue as to
whether he crossed the center stripe, giving Gabler reasonable suspicion to make the
traffic stop.
15
Regarding the validity of the traffic stop, Gabler testified at trial that he saw
Allison’s vehicle swerve and cross the center stripe. Specifically, he testified that
Allison drifted “from the center of the road to the right, across the white [fog] line, .
. . regain[ed] control, drift[ed] to the left, cross[ed] the center yellow line, regain[ed]
control, [returned] to the middle[,] and repeat[ed] the sequence again.” As described
by Gabler, this was a traffic violation. See TEX. TRANSP. CODE § 545.051 (driver
shall drive on right half of roadway). Although Allison’s trial counsel attempted to
cast doubt on the credibility of Gabler’s testimony through cross-examination,
Gabler did not contradict himself. Nor did he make any concession when asked by
Allison’s counsel to point out where Allison’s tires crossed the center stripe on the
video, as demonstrated in these exchanges:
Q. [Video playing] Okay. All right. Well, tell me when he crosses
the center line.
A. Okay. Slightly before now.
Q. Right there?
A. There and maybe about a second [sic] reverse.
...
A. In this general area. In this area, may be slightly before.
Q. Okay. Let’s start from right here. That is about 3 seconds prior.
Okay?
A. There.
16
Q. Right there? That is where you are saying he crossed the center
line?
A. Yes, sir.
...
Q. You will agree with me that he is still inside the lane, correct?
A. I disagree.
Gabler’s testimony on cross-examination thus did not raise a fact issue that was
affirmatively contested. See Madden, 242 S.W.3d at 513 (noting in case involving
issue of whether appellant exceeded speed limit that “[e]ven the most vigorous cross-
examination implying that [the officer] is the Cretan Liar does not raise a disputed
issue [because] there must be some affirmative evidence of ‘did not speed’ in the
record before there is a disputed fact issue.”). Any fact issue must exist because of
other evidence.
Allison asserts that, in addition to the cross-examination of Gabler, the
dashcam video affirmatively contested Gabler’s version of events because it
indisputably showed that Allison did not cross the center stripe. Faced with a similar
argument in Madden, the Court of Criminal Appeals stated, “Only if the video
clearly showed that appellant affirmatively did not do something that [the officer]
said that he did do, and the video clearly would have shown that conduct if it had
occurred, would there by some affirmative evidence of a disputed historical fact.”
242 S.W.3d at 516. Such is not the case here. As mentioned, the dashcam video
17
shows Allison’s vehicle swerving to the right and left twice but does not show the
exact position of Allison’s tires in relation to the center stripe. The events preceding
the traffic stop are obscured by the conditions of the roadway, the distance between
Allison’s and Gabler’s vehicles, and the light emanating from Allison’s headlights.
Furthermore, Gabler acknowledged the video was not good quality and explained
that he possessed a better view of the traffic violation than the video shows.
For these reasons, the video is not conclusive and does not contradict Gabler’s
testimony. See Madden, 242 S.W.3d at 516; see also Henry v. State, No. 07-18-
00179-CV, 2018 WL 6187426, at *2 (Tex. App.—Amarillo Nov. 27, 2018, pet.
ref’d) (mem. op., not designated for publication) (Article 38.23(a) jury charge
instruction not required where person viewing video could only speculate whether
appellant refused or withdrew consent to search); Thomas v. State, No. 10-11-00250-
CR, 2013 WL 2639168, at *6 (Tex. App.—Waco June 6, 2013, no pet.) (mem. op.,
not designated for publication) (Article 38.23(a) jury charge instruction not required
where video did not affirmatively show whether appellant properly signaled turn
because view of car blinker was obscured by headlights from oncoming vehicle).
The dashcam video therefore did not create the affirmatively contested issue of
material fact needed to trigger the trial court’s duty to charge the jury per Article
38.23(a). See Henry, 2018 WL 6187426, at *2; Thomas, 2013 WL 2639168, at *6.
Accordingly, we overrule Allison’s second issue.
18
Ineffective Assistance of Counsel
In his third issue, Allison contends his trial counsel rendered ineffective
assistance by failing to request an Article 38.23(a) jury charge instruction. See TEX.
CODE CRIM. PROC. art. 38.23(a).
A. Standard of Review
To prevail on a claim of ineffective assistance of counsel, the defendant must
show (1) trial counsel’s performance was deficient and (2) a reasonable probability
exists that the result of the proceeding would have been different but for trial
counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 694
(1984). The defendant has the burden of proof on both issues, and his failure to make
either showing by a preponderance of the evidence will defeat the ineffective
assistance claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
B. Analysis
As we have already determined, there was no contested fact issue material to
the lawfulness of the traffic stop; thus, Allison was not entitled to a jury charge
instruction under Article 38.23. See Madden, 242 S.W.3d at 510 (listing required
showings for Article 38.23(a) instruction). Trial counsel’s failure to request an
instruction to which Allison was not entitled is not ineffective assistance. See
Cummings v. State, 401 S.W.3d 127, 132 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d) (rejecting claim of ineffective assistance when trial counsel failed to
19
request Article 38.23 instruction because appellant was not entitled to such
instruction); Hardin v. State, 951 S.W.2d 208, 211 (Tex. App.—Houston [14th Dist.]
1997, no pet.) (same).
Accordingly, we overrule Allison’s third issue.3
Conclusion
Having overruled all of Allison’s issues on appeal, we affirm the judgment of
the trial court.
Amparo Guerra
Justice
Panel consists of Justices Kelly, Guerra, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
3
Allison seeks alternative relief in the form an order abating and remanding this cause
to the trial court so that he can “file an out-of-time motion for new trial and develop
the ineffective assistance of counsel issue.” Allison has not identified any authority
for the requested abatement and remand. See TEX. R. APP. P. 38.1(i) (appellant’s
brief must contain clear and concise argument, and appropriate citations to
authorities and record). Nevertheless, an abatement is not required given our
conclusion that Allison was not entitled to an Article 38.23(a) jury charge
instruction. See Monakino v. State, 535 S.W.3d 559, 563 (Tex. App.—Houston [1st
Dist.] 2016, no pet.) (“To establish harm, and thus an entitlement to an abatement
of an appeal to file an out-of-time motion for new trial, the appellant must
demonstrate a ‘facially plausible claim’ that could have been developed in a motion
for new trial.”).
20